State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections

• Decision Date: 28 July 1993
• Docket Number: No. 92-1821,92-1821
• Citation: 616 N.E.2d 869,67 Ohio St.3d 134
• Parties: The STATE ex rel. CITIZENS FOR RESPONSIBLE TAXATION et al. v. SCIOTO COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 134

67 Ohio St.3d 134

616 N.E.2d 869

The STATE ex rel. CITIZENS FOR RESPONSIBLE TAXATION et al. v. SCIOTO COUNTY BOARD OF ELECTIONS et al.

No. 92-1821.

Supreme Court of Ohio.

Submitted June 15, 1993.

Decided July 28, 1993.

Donald J. McTigue, Columbus, for relators.

Lynn Alan Grimshaw, Scioto County Pros. Atty., and William K. Shaw, Jr., Asst. Pros. Atty., for respondents.

PER CURIAM.

In State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167, 602 N.E.2d 615, we denied a writ of mandamus to compel respondents, the Scioto County Board of Elections and its individual members, to submit a proposed levy decrease to voters at the 1992 general election. We held that relators, Citizens for Responsible Taxation and member Virginia Froman, had not filed an initiative petition containing a sufficient number of valid signatures.

The parties in Citizens for Responsible Taxation stipulated that 2,403 valid signatures were required to place the issue on the ballot pursuant to R.C. 5705.261. After our decision, however, they discovered that respondents had calculated this number incorrectly. In new stipulations of fact, these parties now agree that relators' petition actually contained the requisite number of valid signatures when originally filed, such that the levy decrease should have been approved for the 1992 general election ballot. Thus, relators now ask for relief from the judgment entered in Citizens for Responsible Taxation, supra, and, further, that respondents be ordered to place the issue on the 1993 general election ballot. Respondents have not opposed either request.

Respondents miscalculated the signature requirement because they referred to the gubernatorial election in 1990 to determine the number of valid signatures required by R.C. 5705.261. This statute, however, states that petitions proposing a levy decrease "shall be signed by at least ten per cent of the qualified electors residing in the subdivision and voting at the last general election." (Emphasis added.)

Froman discovered the mistake when she obtained the official abstract of the 1991 general election in Scioto County from respondents. The abstract indicated that the total number of votes cast in 1991 was 21,189, ten percent of which equals 2,118. Since respondents determined that relators' petition as originally filed contained 2,227 valid signatures, Citizens for Responsible Taxation, supra, 65 Ohio St.3d at 167, 602 N.E.2d at 616, relators' petition actually contained one hundred nine signatures more than necessary.

On February 3, 1993, counsel for relators wrote to respondents requesting, in light of the miscalculated signature requirement, that the levy decrease issue be submitted to the electorate at the 1993 general election. In their reply submitted through counsel, respondents conceded their mistake and that the issue "would have been submitted to the voters" if they had realized the error. However, respondents also stated:

"There simply is no statutory mechanism for the Board to reconsider its earlier determination on the validity of the petitions or to initiate that process through correspondence. Nor are there any statutory provisions which would permit the Board to review or amend its prior actions. This is particularly true where those actions have been contested in Court [sic ] and upheld to be valid as a matter of law. In essence, your request to have the Board reopen the issue would have it modify a decision of the Ohio Supreme Court, something it obviously cannot do."

Relators move for relief from the judgment in Citizens for Responsible Taxation pursuant to Civ.R. 60(B)(1) and (5). Civ.R. 60(B) states, in part:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment."

To prevail on a motion filed pursuant to Civ.R. 60(B), the movant must demonstrate:

"(1) [T]hat the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); (2) that the party has a meritorious defense or claim to present if relief is granted; and (3) that the motion is made within a reasonable time. * * * [Citations omitted.] The above three requirements are independent and in the conjunctive. Unless each of the three is satisfied, relief must be denied. * * * [Citations omitted.]" Volodkevich v. Volodkevich (1988), 35 Ohio St.3d 152, 153, 518 N.E.2d 1208, 1210, reconsideration granted in part (1988), 36 Ohio St.3d 612, 522 N.E.2d 521.

Relators have satisfied this standard. The parties agree that they stipulated to a material fact in error, which should constitute a mistake under Civ.R. 60(B)(1). The parties also agree, in effect, that relators would have been entitled to have the levy decrease placed on the 1992 general election ballot if the mistake had not been made. Finally, the parties do not dispute the timeliness of relators' motion.

Moreover, Civ.R. 60(B) is a remedial rule that is to be liberally construed with a view for effecting a just result. Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 18 O.O.3d 442, 445, 416 N.E.2d 605, 609; Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 21, 520 N.E.2d 564, 567. Where both parties are mistaken about a material fact that would have established the underlying claim for relief, justice requires that the parties be relieved of the judgment that denied such relief.

Relators, however, want more than just relief from the judgment in Citizens for Responsible Taxation--they also want us to order that the levy decrease appear on the 1993 general election ballot. In essence, relators are renewing their request for a writ of mandamus, which requires proof that they are entitled to this relief.

When a court finds that a movant has satisfied the Civ.R. 60(B) standard for granting relief from a prior judgment, the court is ordinarily to vacate or suspend the judgment pending a trial on the merits of the issues raised. Livingstone v. Rebman (1959), 169 Ohio St. 109, 8 O.O.2d 109, 158 N.E.2d 366, paragraphs two and three of the syllabus; Matson v. Marks (1972), 32 Ohio App.2d 319, 326-327, 61 O.O.2d 476, 480-481, 291 N.E.2d 491, 497; Society Natl. Bank v. Val Halla Athletic Club & Recreation Ctr., Inc. (1989), 63 Ohio App.3d 413, 418, 579 N.E.2d 234, 238. See, also, DeSantis v. Hobbs (Oct. 1, 1991), Franklin App. No. 91AP-509, unreported, 1991 WL 224178. Here, however, there are no issues of fact to try. As mentioned, respondents agree that relators' petition contained more than the number of valid signatures needed to submit the levy decrease to voters under R.C. 5705.261. Thus, we have no obligation to receive further evidence in this case.

Accordingly, we turn to whether the standard for a writ of mandamus has been satisfied. For the writ to issue, we must find (1) that respondents have a clear legal duty to place the proposed levy decrease on the 1993 general election ballot, (2) that relators are entitled to performance of this duty, and (3) that relators have no adequate remedy in the ordinary course of law. State ex rel. Hodges v. Taft (1992), 64 Ohio St.3d 1, 3, 591 N.E.2d 1186, 1188.

To establish their right to respondents' performance of the duty alleged, relators argue that R.C. 5705.261 continues to require an election on the levy decrease even though the 1992 general election, the election for which their petition was initially filed, is over. Their argument has merit.

R.C. 5705.261 imposes three time requirements for holding an election on a levy decrease issue. The first refers to when the initiating petition must be filed:

"The question of decrease of an increased rate of levy approved for a continuing period of time by the voters of a subdivision may be initiated by the filing of a petition with the board of elections of the proper county not less than seventy-five days before the general election in any year requesting that an election be held on such question." (Emphasis added.)

The second...