[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/crossappellee. 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/crossappellants, 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-Ohio2810, ¶ 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 motorvehicle-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 motorvehicle 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: 

 

1 R.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' crossassignment 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. 

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