THE VILLAGE OF GEORGETOWN v. BROWN COUNTY BOARD OF ELECTIONS.
No. 2019-1216
Supreme Court of Ohio
September 26, 2019
Slip Opinion No. 2019-Ohio-3915
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Georgetown v. Brown Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-3915.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2019-OHIO-3915
THE VILLAGE OF GEORGETOWN v. BROWN COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Georgetown v. Brown Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-3915.]
Prohibition—Writ of prohibition sought by village to prevent board of elections from placing a tax-levy-reduction measure on the ballot—Village failed to show that the board of elections abused its discretion in reversing its prior decision to invalidate 12 petition signatures—Village failed to show that the tax-levy-reduction measure is not a proper ballot measure—Writ denied.
(No. 2019-1216—Submitted September 20, 2019—Decided September 26, 2019.)
IN PROHIBITION.
{¶ 1} In this expedited election case, relator, the village of Georgetown, seeks a writ of prohibition to prevent respondent, the Brown County Board of Elections, from placing a tax-levy-reduction measure on the November 5, 2019 general-election ballot. For the reasons explained below, we deny the writ.
I. Background
A. The voters approve a 9.5-mill levy
{¶ 2} The taxing authority of a subdivision is authorized to levy taxes annually on real and personal property within the subdivision. As a general rule, the aggregate amount of taxes that may be levied on taxable property in any subdivision cannot exceed ten mills on each dollar of tax valuation in any one year (the so-called “ten-mill limitation“).
{¶ 3} The procedure for seeking a tax levy in excess of the ten-mill limitation is spelled out in
For providing and maintaining fire apparatus, mechanical resuscitators, underwater rescue and recovery equipment, or other fire equipment and appliances, buildings and sites therefor, or sources of water supply and materials therefor, for the establishment and maintenance of lines of fire-alarm communications, for the payment of firefighting companies or permanent, part-time, or volunteer firefighting, emergency medical service, administrative, or communications personnel to operate the same, including the payment of any employer contributions required for such personnel under section 145.48 or 742.34 of the Revised Code, for the purchase of ambulance equipment, for the provision of ambulance, paramedic, or other emergency medical services operated by a fire department or firefighting company, or for the payment of other related costs.
{¶ 4} In November 2015, the voters of the village of Georgetown approved a 2.4-mill tax levy to fund the operation of the village‘s fire services. But at a meeting on July 12, 2018, the council of the village of Georgetown approved Ordinance No. 2018-1179, which declared the necessity to levy a tax of 9.5 mills for the purposes spelled out in
{¶ 5} At the same July 12 meeting, the council passed a motion by which it committed itself to repeal the 2.4-mill tax if the voters approved the 9.5-mill levy.
{¶ 6} At a subsequent meeting on July 26, the council adopted Ordinance No. 2018-1181, placing a continuing 9.5-mill tax levy on the ballot. The voters approved the measure on November 6, 2018. True to its word, the village council promptly repealed the 2.4-mill levy.
B. The petition to place on the ballot the question whether to reduce the 9.5-mill levy
{¶ 7}
A levy for one of the purposes set forth in division * * * (I) * * * of this section may be reduced pursuant to section 5705.261 or 5705.311 of the Revised Code. A levy for one of the purposes set forth in division * * * (I) * * * of this section may also be terminated or permanently reduced by the taxing authority if it adopts a resolution stating * * * that the millage is excessive and the levy shall be decreased by a designated amount.
{¶ 8} On August 7, 2019, nine months after voters approved the 9.5-mill levy, circulators submitted to the board of elections a “Petition for an Election on the Decrease of an Increased Rate of Levy Approved for a Continuing Period of Time.” The petition proposed a ballot measure to reduce the rate of the levy from 9.5 mills to 2.5 mills.
{¶ 9} On August 9, the solicitor for the village of Georgetown, Joseph J. Braun, filed a protest against the petition on behalf of the village. The protest argued that the petition was substantively invalid because under
{¶ 10} The Brown County Board of Elections held a meeting on August 13, 2019. The board determined that the petition required 128 valid signatures to qualify for the ballot. The petition contained 143 signatures, of which the board invalidated 26. Thus, the petition fell short by 11 signatures.
{¶ 11} Of relevance here, the board invalidated 13 printed names, marking them “NG” (not genuine), because, as attested to by the director of the Brown County Board of Elections, the signatures “were in printed form, and did not match voter registration records.” These invalidated signatures purported to be the signatures of Charlie Napier, Jane Pack, Beth Napier, Joseph Fulton, Dennis Passwater, Jason Linkous, Tim Manning, Connie Weber, David Watson, Mandy Middleton, Ronda Colliver, Nathan Adkins, and Don Worthington. The board members therefore voted to disallow the petition based on the lack of valid signatures. The board‘s minutes do not reflect any discussion of the protest, which was rendered moot by the board‘s vote. (There are no transcripts from the board‘s meetings in the record.)
{¶ 12} The next day, August 14, a petition circulator named Mike Napier asked the board to reconsider its decision. On August 26, the village solicitor wrote a letter to the board of elections opposing the request for reconsideration. He argued that the board had correctly invalidated petition signatures that were printed rather than in cursive. In addition, the letter stated that the village “incorporate[d] by reference its substantive concerns about the Petition included in its previous filing with the Board.”
{¶ 13} The board of elections met again on August 29. At the meeting, Napier presented testimony and provided the board with two documents, each containing the following preprinted declaration:
To Brown County Board of Elections:
We the undersigned electors of the Village of Georgetown respectfully printed our names instead of signing the petition for an election on the decrease of an increased rate of levy approved for a continuing period of time for the Georgetown fire and EMS at the election held on the 6th of November 2018.
Below the text appeared the printed names and signatures of 12 of the people whose purported signatures on the petition
{¶ 14} The board compared the 12 signatures on the declarations submitted by Napier to its voter-registration records, and it determined that the signatures were genuine. Having now verified an additional 12 signatures, the board unanimously voted to certify the measure to the ballot. The village solicitor then argued his substantive challenges to the petition, and the board voted three to one to overrule his objections.
C. Procedural history
{¶ 15} Two business days later, on September 3, the village filed a complaint for a writ of prohibition in this court. Because the complaint was filed within 90 days of the November 5 election, the case was automatically expedited pursuant to
II. Legal analysis
{¶ 16} Three elements are necessary for a writ of prohibition to issue: the exercise of judicial (or quasi-judicial) power, the lack of authority for the exercise of that power, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. In its merit brief, the board of elections expressly concedes that it exercised quasi-judicial power, and we therefore express no opinion on the subject.
{¶ 17} The village has raised two propositions of law in opposition to placement of the levy-reduction measure on the ballot. First, the village alleges that the board acted unreasonably and arbitrarily when it found that the petition contained a sufficient number of valid signatures. And second, the village continues to challenge the substantive validity of the ballot measure.
A. First proposition of law: The petition did not have a sufficient number of valid signatures
{¶ 18} In its first proposition of law, the village challenges the board‘s validation of 12 additional signatures based on the documents submitted by Napier. Those 12 signatures are the difference between the petition‘s meeting the requirements necessary to put the measure on the ballot or falling short. This proposition involves the second element of the prohibition analysis: whether the board‘s exercise of power was unauthorized by law. To answer this question, “we must determine whether the board acted fraudulently or corruptly, abused its discretion, or clearly disregarded applicable law.” State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. The village asserts that the board abused its discretion and disregarded clearly established law when it validated the 12 signatures.
{¶ 19} Specifically, the village contends that printed signatures are automatically invalid, because “the legislature expressly require[s] them to be in cursive.” But one of the cases relied on by the village, State ex rel. Green v. Casey, 51 Ohio St.3d 83, 554 N.E.2d 1288 (1990), is no longer good law.
{¶ 20} As Green demonstrates, there was a time when Ohio law required a valid signature to be in cursive. We deduced this result from statutory language that was substantively the same as that in current
{¶ 21} Under current law, a “signature” on a petition means the elector‘s “cursive-style legal mark written in that person‘s own hand.”
{¶ 22} The village argues that even under
{¶ 23} Boards of elections have a statutory duty to “[r]eview, examine, and certify the sufficiency and validity of petitions and nomination papers.”
{¶ 24} Crowl built on the foundation laid by State ex rel. Scott v. Franklin Cty. Bd. of Elections, 139 Ohio St.3d 171, 2014-Ohio-1685, 10 N.E.3d 697. That case involved a signature mismatch between a cursive petition signature and a printed voter-registration-card signature, id. at ¶ 23 (Kennedy, J., concurring in judgment only), the inverse of the scenario in the present case. The voter appeared before the board of elections and testified that she had signed the petition in cursive at the instruction of the circulator. Id. at ¶ 7. We held that because the board conducted a hearing,
it was an abuse of discretion for the board to disregard the evidence that hearing produced. Once the board was satisfied that the signature on the petition was [the voter‘s], it should have declared the signature valid and placed [the relator‘s] name on the ballot.
{¶ 25} Having received evidence that the 12 printed names on the petition did belong to eligible electors and had in fact been placed on the petition by those electors, the board would have abused its discretion if it had disregarded that evidence and continued to find the signatures invalid. The village challenges this conclusion by asserting that the declaration signed by the electors does not come close to “satisfying the evidentiary standard needed for the signatures to be considered valid.” But it is well established that when reviewing a factual determination made by a board of elections, we will not substitute our judgment “when there is conflicting evidence on the issue.” State ex rel. Simonetti v. Summit Cty. Bd. of Elections, 151 Ohio St.3d 50, 2017-Ohio-8115, 85 N.E.3d 728, ¶ 19. Here, there is not even conflicting evidence; the signed declaration is the only evidence in the record on the issue.
{¶ 26} In its reply brief, the village invokes our decision in State ex rel. Heavey v. Husted, 152 Ohio St.3d 579, 2018-Ohio-1152, 99 N.E.3d 372. The relators in Heavey, prospective candidates who failed to qualify for the statewide ballot, challenged the rejection of a number of their petition signatures by five county boards of elections. They alleged that one board had rejected 32 signatures based on print/cursive mismatches, but they failed to put into evidence the voter-registration cards to establish that there even were print/cursive mismatches. Id. at ¶ 10. We therefore rejected the claim as speculative, because there are numerous other reasons why the board might have flagged the 32 signatures as “not genuine.” Id. The village appears to read Heavey as holding that a relator who shows a mismatch will prevail, but Heavey never reached that question.
{¶ 27} Finally, the village relies on State ex rel. Barhorst v. Shelby Cty. Bd. of Elections, 3d Dist. Shelby No. 17-15-13, 2015-Ohio-4391, but that case actually undermines the village‘s argument.
{¶ 28} The discrepancy arose from the fact that line 16 contained the printed name “Sean M. Trabue,” with an address and date, and line 17 had Sean M. Trabue‘s name in cursive, with the same address and date. Id. The trial court held that line 16 did not contain a signature and granted a writ of mandamus ordering the board of elections to validate the part-petition, and the court of appeals affirmed. Id. at ¶ 7. The court of appeals reasoned that the printed name on line 16 was not a signature, because “[n]o evidence [was] presented to indicate that the printed name was a ‘legal mark’ used either in normal life by the individual or on his voter registration.” Id. at ¶ 6, quoting
{¶ 29} Moreover, Barhorst is of dubious precedential value. The question in Barhorst was not the validity of the printed name on line 16 but whether the name on that line was even purporting to be a signature. In other words, the conclusion that line 16 did not contain a valid signature (because it was printed) would not cure the violation of
{¶ 30} The village has not shown that the board of elections abused its discretion when it reversed its prior decision to invalidate the 12 petition signatures at issue. We reject the village‘s first proposition of law.
B. Second proposition of law: The 9.5-mill tax levy is not subject to reduction
{¶ 31} In its second proposition of law, the village argues that the board abused its discretion by approving the levy-reduction measure for the ballot, because the proposed reduction from 9.5 mills to 2.5 mills is not a proper ballot measure. As discussed previously, the first sentence of
{¶ 32} The first case is State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582. After voters approved a 9.7-mill operating levy for the South-Western City Schools, a petition was submitted to place on the ballot the question of reducing the rate from 9.7 mills to zero mills. We held that the proposal did not qualify for the ballot under
{¶ 33} The village asserts that Choices is controlling because the reduction of the levy from 9.5 mills to 2.5 mills would be the functional equivalent of a complete repeal: the purpose of the 2018 9.5-mill continuing levy was to allow the village to operate a full-time fire and EMS department, and a 2.5-mill levy will not generate enough revenue to allow full-time operations to continue, so the village would be forced to end full-time operation of its fire and EMS department if the measure to reduce the levy passes.3
{¶ 34} Unlike the levy reduction in Choices, the proposed ballot issue in this case does not seek to “reduce” the tax rate to zero. The key distinction drawn by the court in Choices was between the word decrease—meaning ” ‘to cause [something to] grow less’ “—and the word repeal—
{¶ 35} Alternatively, the village cites State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, in support of its assertion that the proposed ballot measure—reduction to a 2.5-mill levy—does not qualify for the ballot because it seeks to decrease a new levy rate and does not seek to decrease an increase of the rate under
{¶ 36} Taxpayers for Westerville Schools involved two separate levies that had been approved in different years—one of 1.6 mills and the other of 9.8 mills—for a total of 11.4 mills. Decades after those levies went into effect, the school board asked the voters to approve a replacement levy at the same 11.4-mill amount. Id. at ¶ 2-3. After voters approved the same-rate replacement levy in November 2009, the board of elections received an initiative petition seeking a vote on whether to reduce the levy rate to 4.69 mills. Id. at ¶ 4, 6. The board of elections initially certified the measure to the ballot, id. at ¶ 7, but a protestor argued that the petition
did not properly propose a levy-decrease question because the November 2009 voter-approved levy did not result in an increased rate of levy for school-district property owners. Instead, the 2009 levy simply replaced the previous voter-approved levies at the same rate of 11.4 mills.
Id. at ¶ 8. The board of elections agreed with the protestor and removed the question from the ballot. Id. at ¶ 9. Supporters of the measure sought a writ of mandamus restoring it to the ballot.
{¶ 37} We denied the writ, noting that
{¶ 38} The village contends that the same logic applies here—the petition to decrease the levy was not proper, because the 9.5-mill levy was an original levy, not an increase levy. The board of elections disagrees with this analogy. The resolution of this dispute depends on which party has
{¶ 39} The second paragraph of
{¶ 40} We cannot accept the village‘s construction of
{¶ 41} ”
{¶ 42} Taxpayers for Westerville Schools suggested a construction of
{¶ 43} Based on the foregoing, we reject the village‘s second proposition of law.
III. Conclusion
{¶ 44} For the reasons discussed, we deny the writ of prohibition.
Writ denied.
KENNEDY and DEWINE, JJ., concur in judgment only.
Strauss Troy Co., L.P.A., Joseph J. Braun, and Jeffrey A. Levine, for relator.
Zachary A. Corbin, Brown County Prosecuting Attorney, and Mary McMullen, Assistant Prosecuting Attorney, for respondent.