In re CONTEST OF ELECTION HELD ON STARK COUNTY ISSUE 6 (LAKE TOWNSHIP POLICE DISTRICT) IN GENERAL ELECTION HELD NOVEMBER 8, 2011; BISHOP ET AL., APPELLEES AND CROSS-APPELLANTS; CITIZENS FOR LAKE TOWNSHIP POLICE ET AL., APPELLANTS AND CROSS-APPELLEES.
Nos. 2012-0184 and 2012-0214
Supreme Court of Ohio
Submitted April 3, 2012—Decided May 16, 2012.
132 Ohio St.3d 98, 2012-Ohio-2091
Robert J. Triozzi, Cleveland Law Director, and Linda L. Bickerstaff, Assistant Law Director, for appellant.
Per Curiam.
{¶ 1} These are consolidated appeals and a cross-appeal from a judgment of the Stark County Court of Common Pleas setting aside a November 8, 2011 election on Issue 6 in Lake Township, Stark County, Ohio, that approved expansion of the Uniontown Police District to include all of Lake Township’s unincorporated territory and levied a property tax for that purpose. Because the common pleas court did not err in setting aside the election, we affirm the judgment.
Facts
{¶ 2} On June 27, 2011, the Lake Township Board of Trustees adopted a resolution to submit to a vote a proposal to expand the Uniontown Police District to include all of the unincorporated territory of Lake Township, creating the Lake Township Police District, and to levy a tax throughout the area. The
{¶ 3} The November 8, 2011 election ballot provided the following language for Issue 6:
Shall the unincorporated territory within Lake Township not already included within the Uniontown Police District be added to the township police district to create the Lake Township Police District, and shall a property tax be levied in the new township police district, replacing the tax in the existing township police district, at a rate not exceeding four and one-half (4.50) mills for each one dollar of valuation, which amounts to forty-five cents ($0.45) for each one thousand dollars of valuation, for a continuing period of time, commencing in 2011, first due in calendar year 2012?
{¶ 4} The issue was approved by 490 votes, with 5,577 votes in fаvor and 5,087 votes against.
{¶ 5} On December 9, 2011, more than 300 of those who had voted in the November election in Lake Township (“the contestors”) filed a verified petition in the Stark County Court of Common Pleas contesting the election approving Issue 6 and requesting that the election be set aside and the issue deemed rejected. The Stark County Board of Elections, Lake Township Board of Trustees, Citizens for Lake Township Police, and the Uniontown Police District were named as contestees. The board of elections, the township board of trustees, and Citizens for Lake Township Police filed an answer, and all parties who had filed pleadings submitted briefs.
{¶ 6} At a January 6, 2012 hearing, the parties stipulated to a number of points: thе contestors had met the procedural requirements for filing their election contest; the ballot had erroneously specified a property-tax levy rate not exceeding “four and one-half (4.50) mills for each one dollar of valuation, which amounts to forty-five cents ($0.45) for each one thousand dollars of valuation,” when it should have read “a ratе not exceeding four and one-half (4.50) mills for each one dollar of valuation, which amounts to four dollars and fifty cents ($4.50) for each one thousand dollars of valuation”; the erroneous ballot language was also contained in the township board of trustees’ June 27, 2011 resolution and the board of elections’ October 21 and 28, 2011 legal notices published in the Hartvillе News; all other requirements, including publication, were satisfied; the election contest was in some respects an equitable proceeding; and although other newspaper articles, advertisements, and flyers contained correct figures of the
{¶ 7} The five contestors who had verified the election-contest petition testified at the hearing. Two were not aware of Issue 6’s incorrect ballot language until after the election, another’s son told him of the language, which he did not know was erroneous until after the election, one did not know of the error until he actually rеad the ballot, and one discovered a discrepancy in the language when she received her absentee ballot and then received a Lake Township newsletter.
{¶ 8} Thirteen more witnesses testified for the contestors when the hearing continued on January 23, 2012. Eleven testified that they had voted in favor of Issue 6 but that if they had known that the actual property tax to be levied was capped at $4.50 instead of the stated $0.45 for each $1,000 of valuation, they would have voted no on the issue. One of the witnesses had his testimony stricken because he had not voted, and the last testified that he would still have voted in favor of the issue had he known of the correct tax amount. The parties also submitted documentary evidenсe. Over the contestees’ unspecified objections, the contestors submitted the affidavits of ten additional electors who stated that they had voted for Issue 6 during the November 8, 2011 election based on the erroneous ballot language but would have voted no on the issue if the language had correctly stated the maximum tax rate. The contestees submitted еvidence that the Stark County auditor’s website had provided any interested person a tool to calculate the cost of the 4.50 mill tax levy under Issue 6 for any parcel’s taxable value and that an October 28, 2011 Hartville News article reported the availability of this estimator. Also entered into evidence was a July 29, 2011 e-mail from the office of the secrеtary of state to a board of elections employee alerting the board that the language of Issue 6 contained an error because a “$4.5 mill levy yields $0.45 per $100 [of valuation], but $4.50 per $1,000” of valuation instead of the stated $0.45. (Emphasis sic.)
{¶ 9} On January 25, 2012, the common pleas court entered a judgment granting the contest and setting aside the November 8, 2011 election result approving Issue 6. The common pleas court determined that the error in ballot language constituted an election irregularity, that neither laches nor equitable estoppel barred the contestors’ claim, and that “[b]ased on the witness testimony, the affidavits, and the compressed time period for hearings on contested elections, Contеstors ha[d] met their burden” of establishing that the election irregularity made the election result on Issue 6 uncertain. Judgment was stayed pending appeal.
{¶ 10} In case No. 2012-0184, Citizens for Lake Township Police filed a notice of appeal, and the contestors filed a notice of cross-appeal. In case No. 2012-0214, the township board of trustees filed a notice of appeal. The board of
Legal Analysis
Laches and Equitable Estoppel
{¶ 11} As a preliminаry matter, the contestees assert that the trial court erred in ruling that laches and equitable estoppel did not bar the election contest. “For election cases, laches is not an affirmative defense, and [persons seeking relief] have the burden of proving that they acted with the requisite diligence.” State ex rel. Vickers v. Summit Cty. Council, 97 Ohio St.3d 204, 2002-Ohio-5583, 777 N.E.2d 830, ¶ 13. In this case, the irregularity was plainly on the ballot, and the contestors arguably should have known of the defect before the election and could have raised their claim in a preelection contest.
If a tax is imposed in the existing township police district, the question shall be modified by adding, at the end of the question, the following: “, and shall a property tax be levied in the new township police district, replacing the tax in the existing township police district, at a rate not exceeding ......... mills per dollar of taxable valuation, which amounts to ......... (rate expressed in dollars and cents per one thousand dollars in taxable valuation), for ......... (number of years the tax will be levied, or “a continuing period of time”).”
(Emphasis added.)
{¶ 12} The township resolution ordering the submission of the issue to the electorate, legal notices of the ballot issue, and the ballot language for Issue 6 all specified that the property tax to be levied for the Lake Township Police District would be “at a rate not exceeding four and one-half (4.50) mills for each one dollar of valuation, whiсh amounts to forty-five cents ($0.45) for each one thousand dollars of valuation.” However, 4.50 mills for each dollar of valuation is actually ten times greater—$4.50, rather than $0.45, for each $1,000 of valuation.
{¶ 13} Even though the defect was plain, the equitable doctrines of laches and estoppel do not bar the contestors’ election contest for several reasons. First, we
{¶ 14} The contestees’ reliance on our decision in Smith v. Scioto Cty. Bd. of Elections, 123 Ohio St.3d 467, 2009-Ohio-5866, 918 N.E.2d 131, is misplaced. In that case, we reversed the judgment of a court of common pleas granting an election contest and setting aside an election because laches barred the contestors’ claims of defective ballot language. The alleged irregularity in that case—the statement that the proposed charter amendment required a majority of city voters rather than just a majority of those voting—was “not so substantial that relators should be permitted to sleep on their rights until after an adverse election result.” Id. at ¶ 16.
{¶ 15} In contrast, the irregularity here is so substantial that neither laches nor estoppel bars the election contest.
{¶ 16} Therefore, we uphold the trial court’s determination that the election contest is not barred by laches or equitable estoppel.
{¶ 17} To prevail in their election contest, contestors “had to establish by clear and convincing evidence that one or more eleсtion irregularities occurred and that the irregularity or irregularities affected enough votes to change or make * * * uncertain the result of the * * * election.” Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, 816 N.E.2d 579, ¶ 21. As previously noted, the parties stipulated that the election ballot’s failure to comply with
{¶ 18} For the second part of the test, the trial court determined that the contestors were not required to bring into court 246 voters who voted for Issue 6 to testify that they would have voted no if the ballot language stating the tax in dollars and cents per $1,000 of valuation had been correct. Contestees are correct that ordinarily, evidence that 21 voters would have voted differently in the absence of any election irregularity would not be clear and convincing evidence that the irregularity affected enough votes to either change the outcome or make it uncertain when the margin by which the issue was approved is 490 votes. See State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205, 208-209, 602 N.E.2d 644 (1992) (statistical analysis rejected in election case based on a small sample of petition signatures erroneously invalidated by a board of elections); In re Election on the Issue of Zoning the Southeasterly Section of Swanton Twp., 2 Ohio St.3d 37, 40, 442 N.E.2d 758 (1982) (contestors must affirmatively show how many illegal votes were cast, and court cannot speculate on whether enough votes were affected by the аlleged irregularities to change the election result).
{¶ 19} But in tax-levy and bond cases, we have presumed the invalidity of the election more readily in the context of a postelection proceeding. E.g., Beck, 162 Ohio St. at 476, 124 N.E.2d 120 (failure to follow procedural steps concerning submission of tax levy is fatal). The degree of the error here was substantial. The defective language on the ballot, notice, and authorizing resolution understated the actual tax to be levied by Issue 6 by ten times less than the actual tax. In calculating the error, there is no evidence that the township or the election officials were faced with any problems estimating the amount of the levy. Finally, the issue was passed by approximately 52.3 percеnt of the vote—hardly an overwhelming majority. See generally State ex rel. Southeastern Local School Dist. Bd. of Edn. v. Allen, 102 Ohio App. 315, 317, 143 N.E.2d 159 (4th Dist.1955). A misstatement that property owners would pay ten times less than the actual taxes they would pay constituted a substantial defect that materially misled voters about the levy. The contestors’ witnesses testified that they were, in fact, misled.
Cross-Appeal
{¶ 21} In their cross-appeal, the сontestors claim that if the court reverses the judgment granting the election contest, it should remand the cause for further proceedings so that they can be permitted to conduct further discovery on whether the board of elections and the township knew that the ballot language was incorrect and did nothing to correct it. Because we affirm the judgment оf the common pleas court, the contestors’ cross-appeal is moot and need not be addressed. See State ex rel. United Auto., Aerospace & Agricultural Implement Workers of Am. v. Bur. of Workers’ Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335, ¶ 59-61.
Conclusion
{¶ 22} This case presents the extreme circumstances of a misstatement in ballot wording that understated a proposed tax levy by ten times less than the true amount to be collectеd, which misled the voters and clearly affected the integrity of the November 8, 2011 election on Issue 6. Based on the applicable law, we affirm the judgment of the common pleas court granting the contest and setting aside the election.
Judgment affirmed.
O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., concurs in judgment only.
Baker, Dublikar, Beck, Wiley & Mathews, Eric J. Stecz, and Mel L. Lute Jr.; and Grady Law Office, L.L.C., and Michael J. Grady, for appellees and cross-appellants.
Hall Law Firm and Charles D. Hall III; and Alysse L. McCandlish, for appellant and cross-appellee Citizens for the Lake Township Police.
John D. Ferrero, Stark County Prosecuting Attorney, and Deborah A. Dawson and David M. Bridenstine, Assistant Prosecuting Attorneys, for appellant and cross-appellee Lake Township Board of Trustees.