State ex rel. Orange Twp. Bd. of Trs. v. Del. Cnty. Bd. of Elections, No. 2012–2077.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM.
• Citation: 135 Ohio St.3d 162,985 N.E.2d 441
• Parties: The STATE ex rel. ORANGE TOWNSHIP BOARD OF TRUSTEES v. DELAWARE COUNTY BOARD OF ELECTIONS.
• Decision Date: 11 January 2013
• Docket Number: No. 2012–2077.

135 Ohio St.3d 162
985 N.E.2d 441

The STATE ex rel. ORANGE TOWNSHIP BOARD OF TRUSTEES
v.
DELAWARE COUNTY BOARD OF ELECTIONS.

No. 2012–2077.

Supreme Court of Ohio.

Submitted Jan. 8, 2013.
Decided Jan. 11, 2013.

[985 N.E.2d 442]

Jennifer L. Springer, Special Prosecuting Attorney, for relator.

Nick A. Soulas Jr., Special Prosecuting Attorney, for respondent.

PER CURIAM.

[Ohio St.3d 162]{¶ 1} This is an expedited election action by relator, Orange Township Board of Trustees, for a writ of mandamus to compel respondent, Delaware County Board of Elections, to place a tax levy for fire protection and emergency medical services in excess of the ten-mill limitation on the February 5, 2013 special-election ballot. Because the board of elections abused its discretion by refusing to place the levy on the ballot, we grant the writ.

[985 N.E.2d 443]

Facts

{¶ 2} Orange Township, which is located in Delaware County, Ohio, operates a fire department that the township board of trustees claims employs about 48 people and covers over 22 square miles. The township placed a 7.8–mill, three-year renewal levy with an increase for fire protection and emergency medical services under R.C. 5705.19(I) on the November 6, 2012 general-election ballot. The levy failed by 468 votes. The collection of the original levy ends on December 31, 2012, and according to the township board of trustees, the township [Ohio St.3d 163]planned layoffs of 22 of its fire-department employees and closing one of its fire stations due to insufficient funds.

{¶ 3} Orange Township thus decided to place a 7.5–mill, three-year additional levy for fire protection and emergency medical services on the February 5, 2013 special-election ballot. The deadline to have the levy placed on the special-election ballot was November 7, 2012, by 4:00 p.m.

{¶ 4} On November 7, relator, the Orange Township Board of Trustees, adopted Resolution 12–453, which declared a necessity to levy an additional tax in excess of the ten-mill limitation for fire protection and emergency medical services under R.C. 5705.19(I), 5705.191, and 5705.25, and requested that the Delaware County auditor certify, under R.C. 5705.03, the total current tax valuation of the township and the dollar amount of revenue that will be generated by 7.5 mills per calendar year if the tax is approved by the electors.

{¶ 5} On that same date, the county auditor issued a certificate of estimated property tax revenue, in which he estimated that the property tax revenue that would be produced by the stated 7.5 mills would be $7,637,199 and that the total tax valuation used in calculating the estimated property tax revenue was $1,018,293,260.

{¶ 6} The board of township trustees then adopted Resolution 12–454, which declared it necessary to levy the additional 7.5–mill, three-year tax levy in excess of the ten-mill limitation and determined to proceed to have the tax question submitted to township electors at the February 5, 2013 special election.

{¶ 7} To have the levy placed on the ballot, the township had to certify to the board of elections, by the November 7, 2012 deadline, the auditor's certificate of estimated property tax revenue and the resolution declaring it necessary to levy the additional tax and to proceed with the submission of the question of the tax to the township electors, i.e., Resolution 12–454. SeeR.C. 5705.19(I) and 5705.03(B). In its brief, the board of elections notes that it now agrees that “there is no statutory requirement for a political subdivision to file” the resolution of necessity, i.e., Resolution 12–453, with the board of elections.

{¶ 8} The board of elections does not have a policy or rule regarding the mode, manner, or method of submitting documents to it. At 3:52 and 3:53 p.m. on November 7, Orange Township Administrator Gail Messmer sent e-mails to Delaware County Board of Elections Director Karla Herron attaching the board of township trustees' resolutions and the auditor's certification.

{¶ 9} At 3:57 p.m. on November 7, Orange Township Administrative Assistant Nancy Fay personally delivered a paper copy of the auditor's certificate of estimated tax revenue with the board of elections. At 4:00 p.m., Orange Township Fiscal Officer Assistant Connie Martin personally appeared at the [Ohio St.3d 164]board of elections with Resolution 12–454. The Board of Elections clerk required Martin to show identification before file-stamping the resolution at 4:02.

[985 N.E.2d 444]

{¶ 10} Director Herron informed the township representatives that she would make sure that the board of elections received all of the documentation e-mailed and presented by hand delivery and file-stamped, but that she did not know whether the board would accept the documents.

{¶ 11} On December 6, 2012, the board of elections voted four to zero to deny certification of the levy to the February 5, 2013 special-election ballot. The board determined that the township had failed to submit the documents for the levy by the 4:00 p.m. deadline on November 7, 2012.

{¶ 12} Six days later, on December 12, the Orange Township Board of Trustees filed this expedited election action for a writ of mandamus to compel the Delaware County Board of Elections to immediately place the 7.5–mill, three-year levy on the February 5, 2013 special-election ballot. The board filed an answer, and the parties filed briefs under the accelerated schedule in S.Ct.Prac.R. 10.9 (now S.Ct.Prac.R. 12.08). The township board of trustees' reply brief was due on December 27, but none was filed.

{¶ 13} This cause is now before the court for our consideration of the merits.

Analysis Mandamus

{¶ 14} The Orange Township Board of Trustees requests a writ of mandamus to compel the Delaware County Board of Elections to place the additional tax levy for fire protection and emergency medical services on the February 5, 2013 special-election ballot. To be entitled to the requested writ of mandamus, the board of township trustees must establish a clear legal right to the requested relief, a clear legal duty on the part of the board of elections to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12. The board of township trustees must prove these requirements by clear and convincing evidence. See State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 13, quoting State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus (“ ‘Relators in mandamus cases must prove their entitlement to the writ by clear and convincing evidence’ ”). Because of the proximity of the February 5 election, the board of township trustees has established that it lacks an adequate remedy in the ordinary course of the law. Taxpayers for Westerville Schools at ¶ 12.

[Ohio St.3d 165]Clear Legal Right and Clear Legal Duty

{¶ 15} For the remaining requirements, the board of township trustees claims that the board of elections abused its discretion and clearly disregarded applicable law by failing to place the levy on the special-election ballot. See State ex rel. Coble v. Lucas Cty. Bd. of Elections, 130 Ohio St.3d 132, 2011-Ohio-4550, 956 N.E.2d 282, ¶ 11.

{¶ 16} Orange Township attempted to place the levy on the February 5, 2013 special-election ballot under R.C. 5705.19(I), which authorizes taxes to be raised for fire protection and other emergency services. See Rootstown Twp. Bd. of Trustees v. Rootstown Water Serv. Co., 11th Dist. No. 2011–P–0084, 2012-Ohio-3888, 2012 WL 3645340, ¶ 21.R.C. 5705.19 provides:

The taxing authority of any subdivision at any time and in any year, by vote of two-thirds of all the members of the taxing authority,

[985 N.E.2d 445]

may declare by resolution and certify the resolution to the board of elections not less than ninety days before the election upon which it will be voted that the amount of taxes that may be raised within the ten-mill limitation will be insufficient to provide for the necessary requirements of the subdivision and that it is necessary to levy a tax in excess of that limitation for any of the following purposes:

* * *

(I) For the purpose of providing and maintaining fire apparatus, appliances, buildings, or sites therefor, or sources of water supply and materials therefor, or the establishment and maintenance of lines of fire alarm telegraph, or the payment of firefighting companies or permanent, part-time, or volunteer firefighting, emergency medical service, administrative, or communications personnel to operate the same, including the payment of any employer contributions required for such personnel under section 145.48 or 742.34 of the Revised Code, or the...