THE STATE EX REL. REPEAL THE LORAIN COUNTY PERMISSIVE SALES TAX COMMITTEE ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS.
No. 2017-1181
Supreme Court of Ohio
Submitted September 8, 2017—Decided September 15, 2017
2017-Ohio-7648
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Repeal the Lorain Cty. Permissive Sales Tax Commt. v. Lorain Cty. Bd. of Elections, Slip Opinion No. 2017-Ohio-7648.]
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. 2017-OHIO-7648
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Repeal the Lorain Cty. Permissive Sales Tax Commt. v. Lorain Cty. Bd. of Elections, Slip Opinion No. 2017-Ohio-7648.]
Mandamus—Writ of mandamus sought to compel board of elections to certify an initiative petition for election ballot—
IN MANDAMUS.
KENNEDY, J.
{¶ 1} In this expedited election matter, relators, Repeal the Lorain County Permissive Sales Tax Committee, Gerald W. Phillips, Curtis Weems, and Jean L. Anderson (collectively, “the committee“), seek a writ of mandamus compelling respondent, Lorain County Board of Elections, to certify an initiative petition for the November ballot. The board of elections has filed a motion to strike one paragraph from the affidavit submitted by Phillips in support of the petition. For the reasons set forth herein, we deny the motion to strike and deny the petition for a writ of mandamus.
Background
{¶ 2} On December 14, 2016, the Lorain County Board of Commissioners approved Resolution No. 16-799, which increased the existing sales-tax rate by one-quarter of one percent, effective April 1, 2017. It imposed a similar increase on the county use tax for motor vehicles, watercraft, and outboard motors. Resolution No. 16-799 was not passed as an emergency measure.
{¶ 3} In response, the committee circulated petitions captioned “Petition for Repeal of County Permissive Tax.” The body of the petition stated:
We, the undersigned, electors of the County of Lorain, Ohio respectfully petition that the resolution relative to the levying of an increase in the
county permissive sales tax and use tax of one-quarter of one percent (1/4%) pursuant to R.C. 5739.021 andR.C. 5741.021 passed by the Board of Lorain County Commissioners on the 14th day of December, 2016, be submitted to the electors of Lorain County for repeal at the next general election.
{¶ 4} The board of elections determined that the committee had submitted a sufficient number of valid signatures to qualify for the ballot.1 The board also concluded that the petition was valid as to its form and contained no legal defects. However, on August 18, 2017, the board voted two to one not to place the petition on the general-election ballot on the grounds that
Procedural history
{¶ 5} The parties filed briefs, evidence, and stipulations in accordance with the schedule governing expedited election cases in S.Ct.Prac.R. 12.08. The court also received an amicus brief in support of the committee‘s position from Ohio Citizens for Honesty, Integrity and Openness in Government Ltd.
The motion to strike
{¶ 6} As part of its evidentiary submission, the committee submitted an affidavit from relator Phillips. Paragraph 35 of that affidavit reads:
On or about 12-21-16 Craig Snodgrass, Lorain County Auditor, wrongfully and unlawfully refused to accept a certified copy of the Referendum Petitions for Resolution No. 16-799, which cause[d] a minimum of a week day delay in the circulation efforts.
On September 6, 2017, the board of elections filed a motion to strike this paragraph as “patently and demonstratively false and scandalous.” The motion included affidavits intended to prove that the committee had attempted to file the wrong document but that the auditor‘s office had accepted the improper filing anyway.
{¶ 7} Civ.R. 12(F) permits a court to strike “any redundant, immaterial, impertinent, or scandalous matter” in a pleading. The accusation in paragraph 35 that the auditor acted “wrongfully and unlawfully” is not impertinent or scandalous.
{¶ 8} We deny the motion to strike.
The mandamus petition
The elements of mandamus
{¶ 9} To be entitled to a writ of mandamus, a relator must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide the requested relief, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. The sole issue presented by the parties concerns the first element: whether the committee has a clear legal right to have its petition placed on the November ballot.
The law governing initiative petitions to repeal county permissive sales taxes
{¶ 10} A board of county commissioners is authorized to impose a tax upon retail sales by resolution.
{¶ 11} This case concerns
(A) The question of repeal of either a county permissive tax or an increase in the rate of a county permissive tax that was adopted as an emergency measure pursuant to section
5739.021 or5739.026 of the Revised Code may be initiated by filing with the board of elections of the county not less than ninety days before the general election in any year a petition requesting that an election be held on the question. The question of repealing an increase in the rate of the county permissive tax shall be submitted to the electors as a separate question from the repeal of the tax in effect prior to the increase in the rate.
According to the parties, the dispositive issue is the scope of the phrase “that was adopted as an emergency measure” in the first sentence.
{¶ 13} The committee takes a contrary view. It argues that the phrase “that was adopted as an emergency measure” modifies only “an increase in the rate of a county permissive tax.” Under this statutory interpretation,
committee concludes, it has launched a proper repeal attempt against the entire permissive tax.
{¶ 14} This statutory dispute is a matter of first impression. When construing the language of a statute, we begin with a familiar objective: a determination of the intent of the General Assembly. Caldwell v. State, 115 Ohio St. 458, 466, 154 N.E. 792 (1926). The intent of the General Assembly must be determined primarily from the language of the statute itself. Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). When a statute is unambiguous, we apply it as written. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996).
{¶ 15} The parties dispute whether it was the intention of the General Assembly in
emergency basis. Therefore,
Writ denied.
O‘DONNELL, FRENCH, FISCHER, and DEWINE, JJ., concur.
O‘CONNOR, C.J., concurs in judgment only, with an opinion.
O‘NEILL, J., concurs in judgment only.
THE STATE EX REL. REPEAL THE LORAIN COUNTY PERMISSIVE SALES TAX COMMITTEE ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS.
No. 2017-1181
Supreme Court of Ohio
Submitted September 8, 2017—Decided September 15, 2017
2017-Ohio-7648
O‘CONNOR, C.J., concurring in judgment only.
{¶ 17} I agree with the majority‘s decisions to deny the motion to strike and the writ of mandamus. But I write to explain why, in my opinion, the court has overreached in its decision.
{¶ 18} The majority opinion concludes that
{¶ 19} Despite any efforts by relators, Repeal the Lorain County Permissive Sales Tax Committee, Gerald W. Phillips, Curtis Weems, and Jean L. Anderson (collectively, “the committee“), to save their initiative petition by claiming that it seeks to repeal the entire tax, the petition speaks for itself. Specifically, it states that “the undersigned * * * petition that the resolution relative to the levying of an increase in the county permissive sales tax * * * be submitted * * * for repeal at the next general election.” (Emphasis added.) And it is undisputed that the resolution that the Lorain County Board of Commissioners approved was an increase in the tax rate that was not adopted as an emergency measure. Therefore, this mandamus petition concerns an increase in the rate of a county permissive tax that was not adopted as an emergency measure.
{¶ 20} The question the parties put before us is whether the phrase “that was adopted as an emergency measure” in
permissive tax” and “an increase in the rate of a county permissive tax,” as respondent, the Lorain County Board of Elections, claims or modifies only the latter, as the committee claims. However, the initiative petition did not seek to repeal “a county permissive tax,” “an increase in the rate of a county permissive tax that was adopted as an emergency measure,” or a county permissive tax that was adopted as an emergency measure.
{¶ 21} This court is supposed to reach only those issues necessary for resolution of the claim at hand. State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18, citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 238, 242, 736 N.E.2d 893 (2000), and Egan v. Natl. Distillers & Chem. Corp., 25 Ohio St.3d 176, 495 N.E.2d 904 (1986), syllabus. The majority chooses to ignore that canon. The only necessary matter to be determined today is whether the initiative petition would be governed by
{¶ 22} Accordingly, I concur in judgment only.
Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.
Dennis P. Will, Lorain County Prosecuting Attorney, and Gerald A. Innes, Assistant Prosecuting Attorney, for respondent.
Phillips & Co., L.P.A., and Gerald W. Phillips, in support of relators for amicus curiae, Ohio Citizens for Honesty, Integrity and Openness in Government Ltd.