[Cite as Riverside v. State, 2016-Ohio-2881.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 CITY OF RIVERSIDE                                    :
                                                      :
          Plaintiff-Appellant                         :   C.A. CASE NO. 26840
                                                      :
 v.                                                   :   T.C. NO. 13CV4691
                                                      :
 STATE OF OHIO                                        :   (Civil Appeal from
                                                      :    Common Pleas Court)
          Defendant-Appellee                          :
                                                      :

                                                 ...........

                                                OPINION

                 Rendered on the ___6th___ day of _____May______, 2016.

                                                 ...........

DANIEL J. BUCKLEY, Atty. Reg. No. 0003772 and ADAM C. SHERMAN, Atty. Reg. No.
0076850 and JACOB D. MAHLE, Atty. Reg. No. 0080797 and JESSICA K. BAVERMAN,
Atty. Reg. No. 0083951, 301 East Fourth Street, Suite 3500, Great American Tower,
Cincinnati, Ohio 45202
       Attorneys for Plaintiff-Appellant

ZACHERY KELLER, Atty. Reg. No. 0086930 and NICOLE M. KOPPITCH, Atty. Reg. No.
0082129 and BRODI J. CONOVER, Atty. Reg. No. 0092082, Assistant Attorneys
General, Constitutional Offices Section, 30 East Broad Street, 16th Floor, Columbus, Ohio
43215
      Attorneys for Defendant-Appellee

                                                .............

FROELICH, J.

        {¶ 1}     The City of Riverside appeals from a judgment of the Montgomery County

Court of Common Pleas, which granted the State’s motion for summary judgment, denied
                                                                                         -2-


Riverside’s motion for summary judgment, and dismissed Riverside’s case. The parties’

disagreement, in general, and their motions for summary judgment, in particular,

concerned the constitutionality of a statute creating an exemption from municipal income

tax, which was enacted in 2007. The dispute related to employees and contractors who

work at Wright Patterson Air Force Base (WPAFB), some parts of which are located in

Riverside.

        {¶ 2} As a preliminary matter, we note that the parties and the trial court

consistently refer to the disputed statutory section as R.C. 718.01(H)(11). The current

R.C. 718.01(H), which is in the “Definitions” section of R.C. Chapter 718, Municipal

Income Taxes, states, in its entirety: “ ‘Schedule F’ means internal revenue service

schedule F (form 1040) filed by a taxpayer pursuant to the Internal Revenue Code”; it

does not contain any subsections, not does it specifically address an exception to the

municipal commuter income tax. R.C. 718.01 and other statutes governing income taxes

imposed by municipal corporations were “amend[ed], for the purpose of adopting a new

section number * * *, to enact new sections * * *, and to repeal [former] sections * * *” by

Am.Sub.H.B. 5 in 2014.      Although Am.Sub.H.B. 5 does not explicitly state how the

statutes, including R.C. 718.01, were reorganized and renumbered, the provision at issue

in this appeal now appears at R.C. 718.01(C)(13). We will refer to it as such, except

when quoting from the trial court’s decision.

        Legislative History and Procedural History

        {¶ 3} The trial court’s judgment contains a helpful overview of the history of this

case:

              In 1994, the Village of Riverside merged with Mad River Township to
                                                                                 -3-


create the City of Riverside. Prior to the merger, Mad River Township

included portions of WPAFB, and, thus, as a consequence of the merger,

parts of WPAFB are now physically located within Riverside, including the

area of WPAFB formerly known as Page Manor, the National Museum of

the United States Air Force, and part of “Area B.”

       Pursuant    to   Riverside   Codified   Ordinance     181.03(a)(1)-(5),

Riverside imposes a 1.5% tax on all income earned in Riverside by both

resident and nonresident individuals and businesses. Three years after

the merger, on or around April 1997, Riverside attempted to impose its

income tax on commuter employees and contractors working at WPAFB,

claiming that portions of WPAFB were within Riverside’s boundaries and

specifically requesting that WPAFB withhold municipal income taxes from

the wages of its employees. WPAFB refused to withhold those taxes, and,

on August 28, 1998, Riverside filed a federal lawsuit in federal court against

the United States, the Department of Defense, and WPAFB’s commanding

officer. Riverside voluntarily dismissed that lawsuit approximately three

years later in May 2001, apparently deciding to pursue other ways to tax

WPAFB employees.

       In 2003, Riverside became involved in a tax dispute with two private

corporations that performed work at WPAFB.           The corporations filed a

lawsuit in this court [the Montgomery County Court of Common Pleas] under

Case No. 2003-CV-3795, seeking to enjoin Riverside from levying taxes

against them. Riverside filed counterclaims seeking payment of municipal
                                                                                       -4-


      taxes, and this court granted summary judgment to Riverside, finding that

      certain relevant statutes did not require Riverside to obtain approval from

      the Secretary of Defense before merging land that included areas of

      WPAFB. Following that ruling in favor of Riverside, Riverside obtained the

      names and mailing addresses of civilian and contracting employees

      working on WPAFB. On or around April 2007, Riverside began contacting

      these workers and informing them that, if they worked in the Riverside

      portions of WPAFB, they were subject to Riverside’s income tax.

Decision, Order, and Entry (August 19, 2015).

      {¶ 4}     In June 2007, the Ohio General Assembly passed R.C. 718.01(F)(11),

which was later recodified as R.C. 718.01(H)(11) and then R.C. 718.01(C)(13), with some

minor changes not relevant to this appeal.

      {¶ 5}     R.C. 718.01(C)(13), the “Definitions” section of R.C. Chapter 718,

Municipal Income Taxes, states that “exempt income” includes:

      (13) Compensation paid to a person employed within the boundaries of a

      United States air force base under the jurisdiction of the United States air

      force that is used for the housing of members of the United States air force

      and is a center for air force operations, unless the person is subject to

      taxation because of residence or domicile. If the compensation is subject

      to taxation because of residence or domicile, tax on such income shall be

      payable only to the municipal corporation of residence or domicile.

The definition of “municipal taxable income” excludes “exempt income.”               R.C.

718.01(A)(1).
                                                                                        -5-


      {¶ 6} As a result of R.C. 718.01(C)(13), employees and contractors presently

working at a portion of WPAFB that is within Riverside qualify for an exemption from

paying municipal income tax, unless they also live in Riverside.

      The Current Case

      {¶ 7} The trial court stated as follows:

             On August 8, 2013, Plaintiff, City of Riverside, filed its Complaint for

      Declaratory Judgment and Injunctive Relief against Defendant, State of

      Ohio, seeking a declaration that R.C. 718.01(H)(11) [now R.C.

      718.01(C)(13)] violates the Equal Protection Clause of the United States

      Constitution and the Ohio Constitution, and seeking an entry of permanent

      injunction prohibiting enforcement of the subject statute. In its Complaint,

      Riverside alleged that it began to levy its municipal income tax on civilian

      employees and contractors who were employed at Wright Patterson Air

      Force Base (WPAFB) and who worked or lived on portions of the WPAFB

      located within Riverside’s city limits. The tax was imposed by Riverside

      allegedly for the purpose of providing funds for general municipal

      operations, maintenance, new equipment, extension and enlargement of

      municipal services and facilities, and capital improvements. According to

      Riverside, after it began levying the tax, the Ohio General Assembly

      enacted R.C. 718.01(F)(11), later codified as R.C. 718.01(H)(11), as an

      amendment to the biennial budget bill. Riverside alleged that R.C.

      718.01(H)(11) [now R.C. 718.01(C)(13)] discriminatorily prohibits municipal

      assessment of income taxes on certain civilian employees and contractors
                                                                                        -6-


       who work within Riverside on the grounds of a narrowly-defined type of air

       force base, and, thus, is unconstitutional because it violates the Equal

       Protection Clauses of both the United States Constitution and the Ohio

       Constitution.

Decision, Order, and Entry (August 19, 2015).

       {¶ 8} Each of the parties (Riverside and the State of Ohio) filed a motion for

summary judgment on April 15, 2015. On August 19, 2015, the trial court granted the

State’s motion, denied Riverside’s motion, and dismissed the case.

       The Arguments on Appeal

       {¶ 9} Riverside appeals, raising two assignments of error. The first assignment

addresses three discovery issues on which the trial court ruled before entering summary

judgment, as well as an argument that R.C. 718.01(C)(13) violates the Equal Protection

Clauses. The second assignment asserts that the trial court “appl[ied] the incorrect

summary judgment standard.”

       Riverside’s Equal Protection Arguments

       {¶ 10} We will begin our analysis with Riverside’s equal protection arguments

under its first assignment of error.

       {¶ 11} Riverside contends that the trial court “misapplied rational basis review” in

concluding that the municipal income tax exemption created by R.C. 718.01(C)(13) does

not violate the Equal Protection Clauses of the United States and Ohio Constitutions. It

asserts that there “is no evidence” of a legitimate state interest to which the statute is

rationally related. Riverside claims that three classes of Ohio citizens are adversely

affected by the exemption: 1) Riverside residents, 2) individuals who are not Riverside
                                                                                         -7-


residents but who work within Riverside on premises other than WPAFB (and therefore

pay the commuter income tax), and 3) federal employees who work somewhere in

Riverside other than WPAFB. Riverside’s standing to raise these issues was addressed

in a prior Opinion of this court, Riverside v. Ohio, 2d Dist. Montgomery No. 26024, 2014-

Ohio-1974, and resolved in Riverside’s favor.

       {¶ 12} “[S]tatutes are presumed to be constitutional and * * * courts have a duty

to liberally construe statutes in order to save them from constitutional infirmities.”

Pickaway Cty. Skilled Gaming, LLC v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908,

936 N.E.2d 944, ¶ 20, quoting Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122

Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12.           The party challenging the

constitutionality of a statute “bears the burden to negate every conceivable basis that

might support the legislation.” Id., citing Columbia Gas Transm. Corp. v. Levin, 117 Ohio

St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91.

       {¶ 13} The federal and Ohio equal protection provisions are “functionally

equivalent” and “are to be construed and analyzed identically.” Id. at ¶ 17, citing State

v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 18, and Am. Assn. of

Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60,

717 N.E.2d 286 (1999).      Courts apply varying levels of scrutiny to equal protection

challenges depending on the rights at issue and the purportedly discriminatory

classifications created by the law. “[A] statute that does not implicate a fundamental right

or a suspect classification does not violate equal-protection principles if it is rationally

related to a legitimate government interest.” Williams at ¶ 39, citing Eppley at ¶ 15;

Pickaway Cty. Skilled Gaming at ¶ 18.
                                                                                            -8-


       {¶ 14} The State and Riverside agree that this case does not involve a

fundamental right or suspect classification, and that rational-basis review applies.

       {¶ 15} The rational-basis test involves a two-step analysis. First, a valid state

interest must be identified. Second, the court must determine whether the method or

means by which the State has chosen to advance that interest is rational. Pickaway Cty.

Skilled Gaming at ¶ 19, citing McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-

Ohio-6505, 839 N.E.2d 1, ¶ 9. “ ‘Under the rational-basis standard, a state has no

obligation to produce evidence to sustain the rationality of a statutory classification.’

Columbia Gas Transm. Corp. [at] ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State

Univ. Chapter [at 60]. * * *” Id. at ¶ 20.

       {¶ 16} The rational-basis standard requires a high degree of judicial deference to

legislative enactments. Ohio Apt. Assn. v. Levin, 127 Ohio St.3d 76, 2010-Ohio-4414,

936 N.E.2d 919, ¶ 35; Am. Assn. of Univ. Professors at 93. “Moreover, it is well settled

that assessment of taxes is fundamentally a legislative responsibility, and this already

deferential standard is especially deferential in the context of classifications arising out of

complex taxation law.” (Internal citations omitted.) Ohio Apt. Assn. at ¶ 35, citing Park

Corp. v. Brook Park, 102 Ohio St.3d 166, 2004-Ohio-2237, 807 N.E.2d 913, ¶ 23, and

Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).                 “[I]n

structuring internal taxation schemes ‘the States have large leeway in making

classifications and drawing lines which in their judgment produce reasonable systems of

taxation.’ ” Nordlinger at 11, quoting Williams v. Vermont, 472 U.S. 14, 22, 105 S.Ct.

2465, 86 L.Ed.2d 11 (1985).

       {¶ 17} In Regan v. Taxation with Representation of Washington, 461 U.S. 540,
                                                                                         -9-


103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), the United States Supreme Court further

commented on the standard for reviewing equal protection challenges to taxation

schemes:

      “The broad discretion as to classification possessed by a legislature in the

      field of taxation has long been recognized.... The passage of time has only

      served to underscore the wisdom of that recognition of the large area of

      discretion which is needed by a legislature in formulating sound tax policies.

      Traditionally classification has been a device for fitting tax programs to local

      needs and usages in order to achieve an equitable distribution of the tax

      burden. It has, because of this, been pointed out that in taxation, even

      more than in other fields, legislatures possess the greatest freedom in

      classification. Since the members of a legislature necessarily enjoy a

      familiarity with local conditions which this Court cannot have, the

      presumption of constitutionality can be overcome only by the most explicit

      demonstration that a classification is a hostile and oppressive discrimination

      against particular persons and classes. The burden is on the one attacking

      the legislative arrangement to negative every conceivable basis which

      might support it.”

Id. at 547-548, quoting Madden v. Kentucky, 309 U.S. 83, 87-88, 60 S.Ct. 406, 84

L.Ed. 590 (1940).

      {¶ 18} The cases relied upon by Riverside do not contradict or undermine the

equal protection analysis described above, and present significantly different facts than

those at issue here. See, e.g., Allegheny Pittsburgh Coal Co. v. Cty. Com’n of Webster
                                                                                        -10-

Cty., W. Va., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989) (finding system of

property tax assessment that resulted in “gross disparity” in valuation of comparable

properties over a lengthy period of time violated the Equal Protection Clause); General

Electric Co. v. DeCourcy, 60 Ohio St.2d 68, 397 N.E.2d 397 (1979) (dealing with

entitlement to interest on, as well as a refund of, real estate taxes wrongly collected).

Another case cited by Riverside, Graf v. Warren, 10 Ohio St.2d 33, 225 N.E.2d 262

(1967), explicitly recognizes the legislature’s latitude in this area:

       * * * [T]he General Assembly may not discriminate against members of the

       same class by denying some members of the class a tax exemption given

       to others. * * * However, the General Assembly has a wide discretion in

       finding distinctions that will justify classifications.

(Internal citations omitted.) Id. at 39.

       {¶ 19} Because the parties agree, and we find, that this case does not involve a

suspect classification or a fundamental right, the legislature’s enactment of an exemption

to a municipality’s commuter income tax for Air Force base employees and contractors

must be upheld if it is rationally related to a legitimate governmental interest.

       {¶ 20} Notably, Ohio does not maintain a comprehensive legislative history of its

statutes. State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, ¶ 20,

citing State v. Dickinson, 28 Ohio St.2d 65, 67, 275 N.E.2d 599 (1971). Thus, even if

relevant, there is no means to analyze the exact or most-often cited arguments in support

of legislation. Instead, courts rely on the language the legislature chose and Ohio’s long-

established rules of statutory construction. Id. As Justice Holmes opined, “[w]e do not

inquire what the legislature meant; we ask only what the statute means.” Oliver Wendell
                                                                                          -11-

Holmes, The Theory of Legal Interpretation, 12 Harvard L.Rev. 417, 419 (1899). See

also Adams v. Village of Enon, 2d Dist. Clark No. 2012-CA-42, 2012-Ohio-6178, ¶ 48.

       Declaratory Judgment and Summary Judgment Standards of Review

       {¶ 21} When a declaratory judgment action is resolved on summary judgment, an

appellate court’s review of the trial court’s resolution of the legal issues is de novo.

Troutman v. Estate of Troutman, 189 Ohio App.3d 19, 2010-Ohio-3778, 937 N.E.2d 173,

¶ 15 (2d Dist.). “De novo review means that this court uses the same standard that the

trial court should have used, and we examine the evidence to determine whether as a

matter of law no genuine issues exist for trial.” Brewer v. Cleveland City Schools Bd. of

Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v.

Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). On de novo

review, the trial court’s decision is not granted deference by the reviewing appellate court.

Powell v. Rion, 2012-Ohio-2665, 972 N.E.2d 159, ¶ 6 (2d Dist.); Jackson v. McKinney,

2d Dist. Montgomery No. 26288, 2015-Ohio-1977, ¶ 11.

       {¶ 22} Civ. R. 56(C) defines the standard to be applied when determining whether

a summary judgment should be granted. Summary judgment is proper when the trial

court finds: 1) that there is no genuine issue as to any material fact; 2) that the moving

party is entitled to judgment as a matter of law; and 3) that reasonable minds can come

to but one conclusion and that conclusion is adverse to the party against whom the motion

for summary judgment is made, that party being entitled to have the evidence construed

most strongly in the party’s favor. Civ.R. 56(C); Harless v. Willis Day Warehousing Co.,

54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

       {¶ 23} The initial burden is on the moving party to show that there is no genuine
                                                                                         -12-

issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93, 662 N.E.2d 264

(1996). Once a moving party satisfies its burden, the nonmoving party may not rest upon

the mere allegations or denials of the party’s pleadings; it must rebut the moving party’s

evidence with specific facts showing the existence of a genuine triable issue. Id.; Dotson

v. Freight Rite, Inc., 2d Dist. Montgomery No. 25495, 2013-Ohio-3272, ¶ 41 (citation

omitted).

       Statutory Exemption of Certain Employees

       {¶ 24} Keeping in mind the very deferential standards applicable to legislative

enactments and to equal protection challenges subject to rational basis review, we turn

to Riverside’s challenge to R.C. 718.01(C)(13).

       {¶ 25} As stated above, R.C. 718.01(C)(13) exempts “a person employed within

the boundaries of a United States air force base under the jurisdiction of the United States

air force that is used for the housing of members of the United States air force and is a

center for air force operations, unless the person is subject to taxation because of

residence or domicile,” from being subject to a municipality’s commuter income taxes.

The parties do not dispute that, as of now, WPAFB is the only base to which this

exemption applies. The parties also do not dispute that while part of WPAFB lies within

Riverside, other parts do not.

       {¶ 26} The State sets forth four reasons why, in its view, the exemption provided

is not only rational, but strongly justified:

       1) The legislature could have reasonably determined that, because WPAFB

       provides “the overwhelming majority of local services to Base employees,”

       including a police force, fire department, utilities, and road maintenance, the
                                                                                        -13-


       collection of municipal taxes by any municipality in which the Base is located

       was unnecessary or unwarranted;

       2) The legislature could have reasonably determined that internally dividing

       WPAFB for local tax purposes created unnecessary and cumbersome

       administrative concerns, because employees working on various parts of

       the Base would have to be treated differently. The boundaries of Riverside

       not only bisect the Base itself, but also some of the buildings on the Base,

       such that determinations of which employees or offices are taxable by

       Riverside would be difficult;

       3) The legislature could have reasonably determined that the tax exemption

       protects Ohio’s valuable relationship with WPAFB, which employs

       thousands of Ohioans and brings billions of dollars into its economy; and

       4) The legislature could have reasonably decided to promote or reward

       service to the country by providing a tax break to citizens who work at

       WPAFB.

       {¶ 27} Riverside asserts that the State does not have a “legitimate” interest in

most of these purported justifications, with the exception of the State’s relationship with

WPAFB. It argues, for example, that the State does not play any role in the provision of

municipal services to WPAFB, and that “rewarding” employees and contractors who work

for the Air Force by providing a municipal tax exemption does not create any direct benefit

(or cost) to the State.

       {¶ 28} The State presented an affidavit from Mark L. Mays, Chief of Installation

Management Division, 88 Civil Engineer Group at WPAFB, in support of its contentions
                                                                                           -14-


about the logistical aspects of WPAFB operations.           Mays’s responsibilities include

oversight of the provision of the facilities, utilities, and services at the Base,

“environmental concerns,” road maintenance, housing management, and emergency

services.   In addition to addressing these issues, Mays’s affidavit identified the

municipalities and counties in which WPAFB would lie if it were not “entirely federal

jurisdiction” and “treated as a federal enclave,” and discussed how the manner in which

the Base and its buildings are positioned indicates that “municipalities had no role in the

construction of the buildings” and that “the only jurisdictional theory in mind * * * was

federal.”

       {¶ 29} The trial court found that the enactment of R.C. 718.01(C)(13), and the

benefit it confers on some employees of WPAFB, did not violate principles of equal

protection for several reasons. First, the court rejected Riverside’s argument that the

classification employed by the statute was arbitrary and capricious; it held that the

individuals alleged to have been treated disparately were “not alike in all relevant ways”

and that the implementation of different classifications based on work location was

permissible under the U.S. and Ohio Constitutions.            The trial court also rejected

Riverside’s argument that the legislative history of the statute failed to support its

passage; the court noted that “a legislature is not required to articulate its reasons for

enacting a statute, and it is entirely irrelevant for constitutional purposes whether the

conceived reason for the challenged distinction actually motivated the legislature.”

       {¶ 30} Further, the trial court held that the “taxation limitation” or tax exemption for

commuter employees and contractors working at WPAFB “serves vital and valid

governmental interests” in the following respects: 1) it recognizes that WPAFB workers
                                                                                           -15-


receive municipal services from the Base, not Riverside; 2) it prevents complications that

would arise from drawing lines through WPAFB for tax or other purposes; 3) it protects

Ohio’s relationship with WPAFB, which has significant economic value; and 4) it promotes

WPAFB employees’ service to the country.

        {¶ 31} With respect to the statute’s rational relationship to a legitimate interest of

the State, the trial court found that there were rational reasons to distinguish between a

commuter working on an air force base “under federal jurisdiction in a federal enclave”

and other commuters, including other federal employees, not working on an air force

base.

        {¶ 32} In sum, the trial court concluded that each of the grounds for the statute

suggested by the State was rationally related to a legitimate governmental interest, that

R.C. 718.01(C)(13) did not violate the Equal Protection Clauses of the United States or

Ohio Constitutions, and that no genuine issues of material fact remained to be resolved

in this case.

        {¶ 33} After conducting our de novo review of the evidence and the law, we agree

with the trial court’s conclusion that there is no genuine issue as to the constitutionality of

the statutory provision that exempts WPAFB employees and contractors from the

payment of municipal commuter income taxes. Each of the reasons cited by the State

for the enactment of R.C. 718.01(C)(13) is rationally related to a legitimate goal and

supports the conclusion that the tax exemption is a reasonable accommodation –

practically and/or   philosophically -- to WPAFB and its employees.           The exemption

recognizes and promotes the positive relationship between the State and WPAFB. It

eliminates the administrative burden of requiring WPAFB and/or its contractors to monitor
                                                                                           -16-


the locations of employees, as well as how much time is spent in various locations,

relative to Riverside’s boundaries. It also removes the possibility that employees or

contractors at WPAFB will find certain job assignments more or less desirable because

of the impact of a commuter tax affecting some, but not all, of WPAFB’s workplaces and

offices. Finally, the exemption provides a benefit to employees and contractors who are

serving the country in some capacity, and WPAFB, not the city, provides most of the

municipal services for the Base.

       {¶ 34} Each of these reasons is rationally related to a legitimate governmental

purpose and, collectively and individually, these reasons satisfied the rational-basis

analysis test for determining the constitutionality of R.C. 718.01(C)(13). Further, the

“high degree of judicial deference” that we must give to legislative enactments

encompasses giving great deference to the State’s determinations of its own legitimate

interests. The fact that the State may not play a direct role in the benefits or justifications

cited in support of legislation challenged on equal protection grounds does not preclude

a judicial finding that the legislation was rationally related to a legitimate State interest.

Moreover, the State need only set forth one rational basis for its legislative action, and

Riverside concedes that the State has a legitimate interest in promoting good will with

WPAFB.

       {¶ 35} The United States and Ohio Supreme Courts have made clear that a party

challenging the constitutionality of a legislative enactment bears the burden of proof.

Thus, Riverside’s argument that the State did not sufficiently justify the legislative action

misstates the burden, even in summary judgment proceedings such as this one. The

State had “no obligation to produce evidence to sustain the rationality” of the statutory
                                                                                           -17-

classification, Columbia Gas. Transm. Corp, 117 Ohio St.3d 122, 2008-Ohio-511, 882

N.E.2d 400, ¶ 91, and Riverside’s arguments are rooted in improper assumptions that it

could require the State to present factual evidence in court justifying the legislature’s

action. The constitutional question is not whether the State legislature’s decision was

perfect or even the best possible method of achieving a goal. Riverside failed to negate

“every conceivable basis” that might support the conclusion that the statute is rationally

related to a legitimate government purpose, Taxation with Representation of Washington,

461 U.S. 540, 547, 103 S.Ct. 1997, 76 L.Ed.2d 129, Columbia Gas Transm, Corp., 117

Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, at ¶ 91, or to create a genuine issue of

material fact as to the constitutionality of the statute such that further proceedings were

warranted.

       {¶ 36} The trial court did not err in concluding that there was no genuine issue of

material fact as to the constitutionality of R.C. 718.01(C)(13) which warranted further

proceedings and that the State was entitled to judgment as a matter of law.

       Discovery Issues

       {¶ 37} Riverside’s first assignment of error also raises three discovery issues

related to its efforts to demonstrate that it was entitled to judgment as a matter of law.

Generally, we find that they are rooted, in part, in Riverside’s belief that it could require

the State to present factual evidence in the trial court justifying the legislature’s action or

that it could explore and/or challenge the legislative rationale for the commuter income

tax exemption through discovery.

       {¶ 38} Trial courts have broad discretion in the regulation of discovery, and an

appellate court generally reviews discovery orders under an abuse-of-discretion
                                                                                         -18-

standard. State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register,

116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18; Trick v. Scherker, 2d Dist.

Montgomery No. 26461, 2015-Ohio-2972, ¶ 8. A trial court abuses its discretion when it

acts arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). Absent an abuse of discretion, an appellate court

must affirm a trial court’s disposition of discovery issues. Bd. of Clark Cty. Commrs. v.

Newberry, 2d Dist. Clark No. 2002-CA-15, 2002-Ohio-6087, ¶ 13; Trick at ¶ 8. However,

whether the information sought in discovery is confidential and privileged from disclosure

is a question of law, which is reviewed on appeal de novo. Cruz v. Kettering Health

Network, 2d Dist. Montgomery No. 24465, 2012-Ohio-24, ¶ 22.

      Deposing the State’s Representative or Designee

      {¶ 39}   Riverside claims that the trial court erred in granting the State’s Motion for

a Protective Order preventing Riverside from deposing the State through its

representative or designee. Riverside relied on Civ.R. 30(B)(5) as providing a basis for

the deposition. The State argued that Civ.R. 30(B)(5) does not contemplate a deposition

involving the State and that, even if such a deposition were appropriate in some

circumstances, the topics that Riverside sought to address were “inappropriate.”

      {¶ 40} Civ.R. 30(B)(5) states:

      A party, in the party’s notice, may name as the deponent a public or private

      corporation, a partnership, or an association and designate with reasonable

      particularity the matters on which examination is requested. The

      organization so named shall choose one or more of its proper employees,

      officers, agents, or other persons duly authorized to testify on its behalf.
                                                                                         -19-


       The persons so designated shall testify as to matters known or available to

       the organization. * * *

       {¶ 41} Riverside’s “Notice of Rule 30(B)(5) Deposition of State of Ohio” sought to

depose an employee, officer, or agent of the State (chosen by the State) concerning the

following:   1) the legitimate State interests to which R.C. 718.01(C)(13) is rationally

related; 2) the State interests that R.C. 718.01(C)(13) advances or purports to advance;

3) how the statute advances those interests; 4) the identity of “all bases, installations, or

other properties/entities” affected by the statute; 5) “how municipalities are permitted to

tax federal employees not working at WPAFB for income they earn within the

municipality”; 6) Riverside’s boundaries; 7) the process by which the City of Riverside

was formed; and 8) the “[f]acts and reasoning that support the State’s position that a

portion of WPAFB is not located within the City of Riverside.”

       {¶ 42} The trial court found that the State is not “a public or private corporation, a

partnership, or an association” subject to Civ.R. 30(B)(5). It agreed with the reasoning

set forth in Marotto v. The Ohio State University Medical Center, Ct. of Cl. Case No. 2011-

02590, Entry (July 18, 2013), in which the Ohio Court of Claims addressed an identical

argument raised by the Ohio State University Medical Center and granted the hospital’s

motion to strike a Civ.R. 30(B)(5) notice of deposition. The Marotto case was considered

by the Tenth District three times, but the striking of the notice of deposition was not

assigned as an error. See Marotto v. The Ohio State University Medical Center, 10th

Dist. Franklin No. 12AP-27, 2012-Ohio-1078; Marotto v. The Ohio State University

Medical Center, 10th Dist. Franklin No. 12AP-27, 2012-Ohio-6158; Marotto v. The Ohio

State University Medical Center, 2014-Ohio-4549, 21 N.E.3d 643 (10th Dist.).
                                                                                           -20-


       {¶ 43} The trial court further found that, even if the State could be subject to such

a deposition, the State had already summarized the rational justification(s) for the law that

it intended to advance and identified the witnesses and materials on which it intended to

rely, such that some of the information sought in the deposition had already been

provided. It further found that the “requested deposition items were not set forth with

sufficient particularity and are overly broad and unduly burdensome.”

       {¶ 44} The trial court did not abuse its discretion when it granted the State’s

protective order precluding the deposition. The trial court correctly observed that much

of the subject matter Riverside sought to address in the deposition had already been

provided by other means. Some of the proposed topics related to the State’s legal

theories, which were apparent from documents in the record. Other proposed topics

related to the rationale for the legislation’s enactment, which is a matter unsuited for

discovery, especially since the State may rely on any “conceivable basis” in support of

the constitutionality of a statute. Pickaway Cty. Skilled Gaming, 127 Ohio St. 3d 104,

2010-Ohio-4908, 936 N.E.2d 944, ¶ 20.          Further, as referenced above, it is legally

impossible to divine what the legislature considered or its specific bases for legislation.

Under these circumstances, the trial court did not abuse its discretion in granting the

State’s request for a protective order.

       {¶ 45} Moreover, Civ.R. 56(F) states:

       Should it appear from the affidavits of a party opposing the motion for

       summary judgment that the party cannot for sufficient reasons stated

       present by affidavit facts essential to justify the party's opposition, the court

       may refuse the application for judgment or may order a continuance to
                                                                                          -21-


       permit affidavits to be obtained or discovery to be had or may make such

       other order as is just.

Pursuant to this Rule, if, in light of the trial court’s decision to preclude this particular

deposition, Riverside needed additional time to prepare its response to the State’s motion

for summary judgment, it could have filed a motion stating why it could not, at that time,

present sufficient facts justifying its opposition and/or requesting additional time.

Riverside did not do so.

       Deposing the State’s Attorney

       {¶ 46} Riverside also argues that the trial court improperly quashed its subpoena

of Assistant Attorney General Zachery Keller, who represented the State in these

proceedings.    Riverside contends that it was entitled to depose “the individual who

verified the State’s interrogatory responses,” Keller. Specifically, Riverside argues that

Keller was the only person “identified as having knowledge of [the State’s] factual

assertions,” and Keller “made himself into a fact witness” by verifying the State’s

interrogatory responses. The State had sought to quash the subpoena on the grounds

that such a deposition would trigger privilege and work product protections and that the

interrogatories inappropriately focused on legal issues.

       {¶ 47} The trial court summarily granted the motion to quash. Because the trial

court’s order prevented the disclosure of alleged privileged or otherwise protected

information (rather than requiring such disclosure), the decision, like most other discovery

orders, was not immediately appealable. See McDade v. Morris, 9th Dist. Summit No.

27454, 2015-Ohio-4670, ¶ 18.

       {¶ 48} Riverside’s interrogatories contained questions such as: 1) “Identify each
                                                                                         -22-


person known or reasonably believed to * * * have knowledge of any of the facts or

circumstances regarding the subject matter of Riverside’s complaint to the State’s

Answer”; 2) “State all facts and reasons that support your affirmative defense that ‘R.C.

718.01(H)(11) is rationally related to a legitimate state interest’ ”; 3) “Identify each and

every state interest that the State contends [R.C.] 718.01(H)(11) * * * advances or

purports to advance”; and 4) For each interest identified in [3)], explain in detail how the

State contends Section 718.01(H)(11) advances that state interest.”

       {¶ 49} Riverside’s interrogatories were directed to the State of Ohio, rather than

to any particular individual; Assistant Attorney General Keller answered. The trial court

could have reasonably concluded that, to the extent that the interrogatories asked for

factual information, the State had answered.      For example, Riverside requested the

identity of persons with “knowledge of any of the facts or circumstances regarding the

subject matter of Riverside’s complaint”; the State responded (in addition to objecting)

that members of the 127th General Assembly, which enacted the tax exemption, “can

reasonably be presumed to have at least some knowledge of the facts and

circumstances” regarding its passage, and that not-yet-identified persons at WPAFB

might also be presumed to have such information.

       {¶ 50} With respect to Riverside’s interrogatories about the State’s legal theories

of the case and “affirmative defenses,” the interrogatory responses directed Riverside to

the State’s Motion to Dismiss, its Reply in Support of its Motion to Dismiss, and its

appellate brief in the previous appeal. Additionally, the trial court could have reasonably

concluded that these interrogatories were improper, insofar as they sought information

about legal theories of the case from opposing counsel.
                                                                                             -23-


          {¶ 51} The trial court did not abuse its discretion in quashing the subpoena of

Keller.

          Motion to Compel Documents

          {¶ 52} Finally, Riverside claims that the trial court erred in overruling its motion to

compel documents, specifically certain communications between attorneys of the Air

Force or WPAFB and the State’s attorneys handling this case or other cases involving

Riverside and WPAFB. Four or five memoranda1 and some email exchanges are at

issue.

          {¶ 53} The State asserted that these communications were protected by attorney-

client privilege and under the common interest doctrine, because they furthered the

State’s legal analysis and defenses related to this litigation. The State also asserted that

the documents were work product created because of pending litigation.                Riverside

argued that there was no attorney-client privilege, common interest privilege, or work

product doctrine protection for these documents, or that the State could not assert these

defenses on behalf of WPAFB and its attorneys. Riverside further argued that privilege

did not apply because the Ohio Attorney General did not represent WPAFB, and WPAFB

waived any privilege that applied to the documents by disclosing them to the Attorney

General.

          {¶ 54} The State submitted three affidavits in support of its claim of privilege, in

accordance with Civ.R. 26(B)(6)(a). These affidavits were from attorneys representing



1
 The trial court’s judgment refers to six memoranda in the State’s privilege log, and the
affidavit of State’s attorney Brodi Conover identifies five memoranda. One memorandum
was voluntarily disclosed by the Attorney General’s office during the course of these
proceedings.
                                                                                        -24-


the State or WPAFB and stated that the memoranda and emails at issue in the motion to

compel had been exchanged since a summary judgment ruling between the current

parties in a previous case; they further stated that the State’s correspondence and

collaboration with WPAFB was in anticipation of further litigation and for the purpose of

discussing defense strategy. Additionally, some of the documents included “general

background facts regarding Riverside’s efforts to tax Wright Patterson employees,”

discussion of jurisdictional issues, and analysis of whether certain documents were

protected from discovery. Similarly, according to the affidavits, the emails contained

background discussions of how the City of Riverside was formed, its boundaries, its

authority to tax WPAFB employees, and legal strategy. (We note that the emails and

documents in question have not been made part of the record on appeal.)

      {¶ 55} After conducting a detailed analysis of the affidavits submitted by the State,

the trial court agreed with Riverside that attorney-client privilege did not apply because

the State did not represent WPAFB. However, it found that the State’s argument that

the documents contained work product was “compelling.” Citing Civ.R. 26(B)(3) and

Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, the court

observed that Riverside was required to show good cause to compel the production of

documents prepared in anticipation of litigation by another party or its representative.

See Civ.R. 26(B)(3). The trial court concluded that Riverside had not shown good cause

to compel the production of the disputed documents in the State’s privilege log, because

it had not shown that the information contained in the documents was at issue in the case,

was otherwise unavailable, and/or that Riverside’s need for the information was

compelling. Thus, the court overruled Riverside’s motion to compel the production of the
                                                                                             -25-


disputed documents. The court expressly did not rule on the State’s asserted “common

interest exception.”

       {¶ 56} The trial court did not abuse its discretion in concluding that Riverside had

not shown good cause to compel the production of the documents in question. Although

the court did not rule on the State’s assertion that it and WPAFB had a common interest

in the litigation, Riverside’s assertion that documents prepared by WPAFB “cannot be

considered the ‘work product’ of the State” oversimplifies the issue. Civ.R. 26(B)(3)

mandates that trial preparation materials may be obtained in discovery “only upon a

showing of good cause” by the party seeking the documents. The trial court did not

abuse its discretion in concluding that Riverside had failed to satisfy this requirement.

       {¶ 57} Riverside’s first assignment of error is overruled.

       Trial Court’s Application of the Summary Judgment Standard

       {¶ 58} In its second assignment of error, Riverside claims that the trial court

applied the incorrect standard of summary judgment. Riverside asserts that the trial

court erred in that it did not require the State, as the moving party, to meet its initial burden

of showing there was no genuine issue of material fact for trial. It also claims that the

trial court erroneously applied the “beyond a reasonable doubt” standard, when the

burden shifted to Riverside to show that there was a genuine issue for trial.

       {¶ 59} As we discussed above, the initial burden is on the party moving for

summary judgment to show that there is no genuine issue of material fact. Drescher, 75

Ohio St.3d 280, 292-93, 662 N.E.2d 264. Once a moving party satisfies its burden, the

nonmoving party may not rest upon the mere allegations or denials of the party’s

pleadings; it must rebut the moving party’s evidence with specific facts showing the
                                                                                          -26-

existence of a genuine triable issue. Id.; Dotson, 2d Dist. Montgomery No. 25495, 2013-

Ohio-3272, ¶ 41.

       {¶ 60} The summary judgment standard, with its focus on the “material facts,” is

arguably somewhat problematic to apply when the issue upon which the court is asked

to render summary judgment is, at its core, a legal issue, as is the case here. The State

set forth several rational bases for the legislature’s conclusion that the enactment of R.C.

718.01(C)(13) served a legitimate government purpose. Pursuant to case law of the

U.S. and Ohio Supreme Courts, which is also cited above, the State had “no obligation to

produce evidence to sustain the rationality of a statutory classification.” Columbia Gas.

Transm. Corp, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91; Taxation With

Representation of Washington, 461 U.S. 540, 547-548, 103 S.Ct. 1997, 76 L.Ed.2d 129.

Moreover, legislation is presumed to be constitutional. Pickaway Cty. Skilled Gaming,

127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 20. The trial court did not err

in concluding that the State “set forth proof that it had valid state interests in legislating

tax exemptions for those who work on a federal air force base, including WPAFB,” thus

shifting the burden to Riverside to establish that there was a triable issue.

       {¶ 61} Once the burden shifted, Riverside argued that R.C. 718.01(C)(13) did not

treat all similarly situated individuals in a similar manner, i.e., some commuters to

Riverside must pay its income tax, and non-WPAFB federal employees are required to

pay incomes taxes to municipalities in which they work, while WPAFB federal employees

are exempt. The trial court concluded that Riverside failed to demonstrate that a genuine

issue of material fact existed as to 1) whether the various employees referenced by

Riverside were “not alike in all relevant ways” for purposes of classification and equal
                                                                                         -27-


protection analysis, and 2) whether the legislature’s classification for tax purposes was

“arbitrary and capricious.” It also concluded that there was no genuine issue of material

fact that the classification was reasonably related to the State’s legitimate interests.

These conclusions were legal conclusions, rather than factual ones.

       {¶ 62} The trial court concluded that “even construing the evidence in favor of

Riverside, the court finds that Riverside has failed to meet its burden of proving that R.C.

718.01(H)(11) violates the Equal Protection Clauses of the United States Constitution and

Ohio Constitution beyond a reasonable doubt. As a result, no genuine issues of material

fact remain in this case, and the State of Ohio is entitled to judgment as a matter of law.”

The trial court’s use of the phrase “beyond a reasonable doubt” is a central focus of

Riverside’s argument that the court applied an improper standard.

       {¶ 63} Although Riverside correctly points out that the “beyond a reasonable

doubt” standard does not generally apply in civil cases, the Ohio Supreme Court has

stated that a lawfully enacted statute “will not be invalidated unless the challenger

establishes that it is unconstitutional beyond a reasonable doubt.” Cleveland v. State,

128 Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d 370, ¶ 6. In this context, the trial court

did not err in concluding that Riverside had failed to rebut the State’s motion that it was

entitled to judgment as a matter of law because there was no genuine issue of material

fact that Riverside could not establish the unconstitutionality of R.C. 718.01(C)(13)

“beyond a reasonable doubt”; its use of this language did not reflect an improper analysis

of the issues presented. Having conducted a de novo review of the issues presented,

we agree with the trial court’s conclusion that the State was entitled to judgment as a

matter of law.
                                                                 -28-


      {¶ 64} The second assignment of error is overruled.

      {¶ 65} The judgment of the trial court will be affirmed.

                                        .............

DONOVAN, P.J. and FAIN, J., concur.

Copies mailed to:

Daniel J. Buckley
Adam C. Sherman
Jacob D. Mahle
Jessica K. Baverman
Zachery Keller
Nicole M. Koppitch
Brodi J. Conover
Hon. Mary Katherine Huffman
