Bishop v. Citizens for Lake Twp. Police (In re Contest of Election Held on Stark Cnty. Issue 6 (Lake Twp. Police District) in Gen. Election Held November 8)

Citation969 N.E.2d 1172,132 Ohio St.3d 98,2012 -Ohio- 2091
Decision Date16 May 2012
Docket Number2012–0214.,Nos. 2012–0184,s. 2012–0184
PartiesIN 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.
CourtUnited States State Supreme Court of Ohio

OPINION TEXT STARTS HERE

Baker, Dublikar, Beck, Wiley & Mathews, Eric J. Stecz, and Mel L. Lute Jr., North Canton; and Grady Law Office, L.L.C., and Michael J. Grady, Barberton, for appellees and cross-appellants.

Hall Law Firm and Charles D. Hall III, Canton; 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.

PER CURIAM.

[Ohio St.3d 98]{¶ 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 [Ohio St.3d 99]resolution was to be submitted to the voters, and notice was provided to township voters by publication in the Hartville News on October 21 and 28, 2011.

{¶ 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 favor 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: the 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 rate 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 Hartville 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 [Ohio St.3d 100]property tax that would be levied if the issue passed, none specified the pertinent $4.50 rate for each $1,000 of valuation.

{¶ 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 read 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 evidence. 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 evidence 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 secretary 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, Contestors 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 [Ohio St.3d 101]elections did not appeal from the common pleas court's judgment. On March 1, 2012, we granted a motion to consolidate the cases and a motion to expedite the briefing schedule in the consolidated cases. 131 Ohio St.3d 1465, 2012-Ohio-799, 962 N.E.2d 314. This cause is now before the court for our consideration of the merits.

Legal Analysis
Laches and Equitable Estoppel

{¶ 11} As a preliminary 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. R.C. 505.481(B)1 specifies how the ballot issue of this type is to read if a tax is included:

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, which 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 [Ohio St.3d 102]have long held that in cases involving tax levies and bond issues, ‘the form of the ballot and all procedural steps are conditions...

To continue reading

Request your trial
5 cases
  • Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning Appeals (In re Columbus Bituminous Concrete Corp.)
    • United States
    • United States Court of Appeals (Ohio)
    • 5 Junio 2018
    ...the court's judgment on the merits renders Berger Health's cross-appeal moot, we need not address it. See In re Contest of Election Held on Stark Cty. Issue 6 , 132 Ohio St.3d 98, 2012-Ohio-2091, 969 N.E.2d 1172, ¶ 21 ("Because we affirm the judgment of the common pleas court, the [appellee......
  • Pitts v. Jarrells
    • United States
    • United States Court of Appeals (Ohio)
    • 26 Septiembre 2019
    ...Consequently, we need not address the appellee's cross-assignments of error. See In re Contest of Election Held on Stark Cty. Issue 6, 132 Ohio St.3d 98, 2012-Ohio-2091, 969 N.E.2d 1172, ¶ 21 ("Because we affirm the judgment of the common pleas court, the [appellees'] cross-appeal is moot a......
  • O'Farrell v. Landis, 2012–2151.
    • United States
    • United States State Supreme Court of Ohio
    • 16 Enero 2013
    ...by the secretary of state or the United States Election Assistance Commission as required by law. And in In re Contest of Election Held on Stark Cty. Issue 6, 132 Ohio St.3d 98, 2012-Ohio-2091, 969 N.E.2d 1172, the ballot language misstated the actual amount of the levy by ten times less th......
  • In re Contest of Election Held on Stark Cty. Issue 6, 2012-0184
    • United States
    • United States State Supreme Court of Ohio
    • 23 Julio 2012
    ...Ohio 3299132 Ohio St.3d 982012 Ohio 2091In re Contest of Election Held on Stark Cty. Issue 62012-01842012-0214Supreme Court of OhioJuly 23, 2012SLIP OPINIONS REPLACED BY OHIO OFFICIAL REPORTS VERSIONSAS OF JULY 23, 2012 The official versions of the opinions listed below, which were previous......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT