THE STATE EX REL. ST. CLAIR TOWNSHIP BOARD OF TRUSTEES ET AL. v. THE CITY OF HAMILTON ET AL.
No. 2017-0563
SUPREME COURT OF OHIO
March 5, 2019
Slip Opinion No. 2019-Ohio-717
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-717
Mandamus—Writ sought to compel city to pay township for lost tax revenue associated with township territory annexed to city—
(No. 2017-0563—Submitted January 8, 2019—Decided March 5, 2019.)
IN MANDAMUS.
{¶ 1} In this original action, relators, the St. Clair Township Board of Trustees and Trustees Tom Barnes, John R. Snyder, and Judy Valerio (collectively, “St. Clair“), have filed a complaint for a writ of mandamus compelling respondents, the city of Hamilton (“the city“), City Manager Joshua Smith, and City Finance Director David C. Jones (collectively, “Hamilton“), to calculate (or cause to be calculated) and pay lost tax revenue associated with territory that was annexed to the city before March 27, 2002, but not excluded from the township until 2016.1 For the reasons that follow, we deny the writ.
LEGAL BACKGROUND
{¶ 2} St. Clair Township is a “body politic and corporate, for the purpose of enjoying and exercising the rights and privileges conferred upon it by law,”
{¶ 3} “Territory may be annexed to, merged with, or detached from, municipal corporations” as provided by law.
{¶ 4} Before March 27, 2002, a municipal corporation bore a responsibility under specified circumstances to pay a township for lost tax revenue associated with the municipality‘s “annexation of territory of any township.” Former
If unincorporated territory is annexed to a municipal corporation and excluded from a township under
section 503.07 of the Revised Code , upon exclusion of that territory, the municipal corporation that annexed the territory shall make payments to the township from which the territory was annexed only as provided in this section * * *.
In other words, the S.B. 5 version of
{¶ 6} As set forth in
{¶ 7} Uncodified language contained in Section 3 of S.B. 5 addressed the class of annexation petitions to which S.B. 5 would apply:
The provisions of Section 1 of this act shall apply only to annexation petitions filed on or after the effective date of this act. All annexation petitions filed before the effective date of this act shall be processed under the provisions of Chapter 709. of the Revised Code in effect at the time a particular petition was filed.
{¶ 8} Effective August 5, 2016, the General Assembly repealed the S.B. 5 version of
FACTUAL BACKGROUND
{¶ 9} The city of Hamilton, which is located in Butler County, has, over time, annexed territory from four townships: Fairfield, Hanover, Ross, and St. Clair. Historically, after annexation, the Butler County auditor assigned the newly annexed parcels to a taxing district in the city that did not include the township from which the territory was annexed. As a result, owners of real property located within the city did not pay real-property taxes to any township and there was no township taxing district, township tax rate,
{¶ 10} In the spring of 2016, St. Clair Township‘s counsel contacted the county auditor to inquire whether the township should be receiving an allocation of inside millage each year for its territory that had been annexed by the city.2 According to a deputy auditor, counsel‘s inquiry was worth investigating. Following an investigation, it was determined that an adjustment to the township‘s boundaries might provide a means to resolve the issue.
{¶ 11} In September 2016, the city‘s then finance director informed city council via staff report that the city had, over an unspecified period of time, “annexed property from four surrounding townships” but that “[n]o documentation ha[d] been located indicating that the City ha[d] ever filed a subsequent petition with the county commissioners to remove annexed territory from a township after annexations were complete[].” Continuing, the report explained that “[f]ailure to remove the territory from a township following annexation results in the property being located in joint or overlapping jurisdictions—both in the City and in the township following annexation;” however, the county had been treating the “annexations themselves as automatically removing the annexed territory from a township, leaving it solely in the City of Hamilton for both voting and tax purposes.”
{¶ 12} The report noted St. Clair Township‘s claims that it was entitled to an allocation of inside millage based on the auditor‘s automatic removal of township territory following annexation. To remedy the issue, the report recommended that city council grant authority for a petition to be filed with the Butler County Board of Commissioners requesting that a new township—Hamilton Township—be created out of the previously annexed territory from Fairfield, Hanover, Ross, and St. Clair Townships. Hamilton Township would exist solely within the city‘s boundaries as a so-called “paper township”3 and thus have no duties or entitlements to taxes. The report posited that the creation of the township would “straighten up any inaccuracies of the Butler County Auditor in failing to properly attribute taxes” associated with the annexed territory.
{¶ 13} City council followed the report‘s recommendation and adopted an emergency ordinance authorizing the submission of a petition to the board of county commissioners seeking the creation of Hamilton Township. The new township would conform to the city‘s boundaries and consist of parts of the four townships that the city annexed before the effective date of S.B. 5. The city manager then filed the petition with the board of county commissioners, along with a list of parcel numbers that would constitute Hamilton Township. In October 2016, about two months after the current version of
{¶ 14} Following the petition‘s approval, St. Clair sought lost-tax-revenue payments from the city. After the city refused to pay, St. Clair filed this original action seeking a writ of mandamus. St. Clair seeks, for tax year 2016 and successive tax years thereafter prescribed by current
{¶ 15} While this case was pending, we denied St. Clair‘s motion for a peremptory writ and request to appoint a master commissioner.4 153 Ohio St.3d 1427, 2018-Ohio-2418, 100 N.E.3d 444. We also denied Hamilton‘s motion to dismiss. Id. We instead issued an alternative writ directing the parties to file evidence and briefs. Id. The parties have submitted their evidence, and the matter is fully briefed.
ANALYSIS
The mandamus standard
{¶ 16} For a writ of mandamus to issue, St. Clair must show with clear and convincing evidence that (1) Hamilton has a clear legal duty to provide the requested relief, (2) St. Clair has a clear legal right to receive it, and (3) St. Clair lacks an adequate remedy in the ordinary course of the law. State ex rel. Love v. O‘Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. Under the clear-and-convincing-evidence standard, St. Clair bears the burden to offer ” ‘proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will’ ” lead the fact-finder to ” ‘a firm belief or conviction as to the facts sought to be established.’ ” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
Clear legal duty
{¶ 17} St. Clair grounds its assertion that it is entitled to relief in mandamus on the current version of
{¶ 18} As recounted earlier, Section 3 of S.B. 5 provided that S.B. 5‘s provisions “apply only to annexation petitions filed on or after the effective date of [S.B. 5].” Section 3 went on to provide that an annexation petition filed before S.B. 5‘s effective date would be subject to
{¶ 19} The absence of Section 3‘s uncodified language from H.B. 233 raises the question whether the uncodified language still applies. The answer may be found in S.B. 5 Section 3 itself. It contains a directive about how to apply “[t]he provisions of * * * this act [S.B. 5].” The current version of
{¶ 20} Hamilton counters that requiring it to pay St. Clair Township under the current version of
{¶ 21} Hamilton next contends that applying the current version of
{¶ 22} Lastly, Hamilton argues that no compensation is due unless township territory is excluded within 12 years of its annexation. Because the exclusion of St. Clair Township‘s territory took place more than 12 years after annexation, says Hamilton, no compensation is due. This argument builds off the repayment schedules set forth in the current version of
{¶ 23} In summary, we conclude that the current version of
Clear legal right
{¶ 24} The parties do not cite a case from our mandamus jurisprudence in which a political subdivision sought to compel another political subdivision to pay lost tax revenue. But because the essence of St. Clair‘s requested remedy is a command directing the payment of money lawfully owed, we seek guidance from other cases in which the relator‘s proposed remedy was of a similar character. A helpful source of guidance is the line of cases from the public-employment setting involving attempts by public employees to recover wages or benefits from their government employer. “The ministerial act of making payment of money due a public employee may be compelled by mandamus where the public employee has a clear legal right to payment of the compensation, and the respondent public officer has a clear legal duty to perform the ministerial task of making such payment.” State ex rel. Fenske v. McGovern, 11 Ohio St.3d 129, 132, 464 N.E.2d 525 (1984).
{¶ 25} We have stressed in these contexts that a writ will not issue unless “the right to relief [is] clear and the amount established with certainty.” State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 25 (collecting cases). “The term ‘with certainty’ generally refers to ‘whether a particular amount has been precisely determined as to its value in dollars and cents’ and at times ‘also refer[s] to the quality of proof, in order for an employee to demonstrate that he has a clear legal right to the relief for which he prays.’ ” (Brackets sic.) State ex rel. Tempesta v. Warren, 128 Ohio St.3d 463, 2011-Ohio-1525, 946 N.E.2d 208, ¶ 27, quoting State ex rel. Hamlin v. Collins, 9 Ohio St.3d 117, 120, 459 N.E.2d 520 (1984).
{¶ 26} In this case, St. Clair has not established with certainty the amount of lost tax revenue owed, a point that St. Clair concedes. Indeed, St. Clair has not ventured a guess as to what the amount might be. To calculate the amount of lost tax revenue due St. Clair Township, the annexed territory that was excluded from St. Clair Township would need to be known. But St. Clair has not identified the extent of this territory. According to the deputy county auditor, it would take the “largest forensic title exam ever” to precisely locate the excluded territory. For its part, St. Clair claims that the parcel numbers associated with the territory could be discerned by comparing mapping data kept by the Butler County engineer with data that accompanied the city‘s petition. But even St. Clair recognizes the possibility that this comparison could yield doubtful results, as St. Clair itself admits that there are “unresolved” discrepancies between the data kept by the engineer and the data reflected on the petition. An additional element needed to calculate the lost tax revenue would be the tax rate applicable to the territory that was excluded from St. Clair Township. But, again, no evidence has been offered on this point.
{¶ 27} St. Clair acknowledges these factual difficulties but argues that they are the result of actions taken by the auditor (a nonparty) and the city. This argument proceeds in two steps. First, St. Clair avers that before the city received approval to adjust St. Clair Township‘s boundaries, the auditor had historically failed to “create a statutorily-required inside millage rate” for that portion of St. Clair Township‘s territory that overlapped with the city. Second, St. Clair maintains that after the city received approval to adjust the boundaries, any obligation on the part of the auditor to create such a rate necessarily ceased because the boundary adjustment removed the overlap that had existed between the city and St. Clair Township. The confluence of these two events, in St. Clair‘s view, “destroyed the ability to calculate the tax-revenue stream to which the
{¶ 28} In support of this argument, St. Clair cites Quality Ready Mix, Inc. v. Mamone, 35 Ohio St.3d 224, 520 N.E.2d 193 (1988), in which this court held that “[t]he doctrine of legal impossibility, while relevant to the enforcement of contractual obligations, has no application to the performance of responsibilities imposed by statute,”
{¶ 29} This case, unlike Mamone, does not present a question of conflicting duties. It is plain that under the current version of
{¶ 30} Because we conclude that St. Clair has not shown that it has a clear legal right to the requested relief, we deny the writ. We caution, however, that our decision today is not an adjudication on the merits. See Manley at ¶ 31 (affirming the court of appeals’ denial of a writ of mandamus but cautioning that the decision was not an adjudication on the merits). Should St. Clair attempt to institute an action in another forum to obtain its requested relief, this decision would not be a bar to such an action. See
CONCLUSION
{¶ 31} For the foregoing reasons, we deny the complaint for a writ of mandamus.
Writ denied.
O‘CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., not participating.
Gary L. Sheets, for relators.
Kegler, Brown, Hill & Ritter, and Catherine A. Cunningham, for respondents.