State ex rel. v. Anthony, 2005-1725.

• Decision Date: 10 October 2005
• Docket Number: No. 2005-1725.,2005-1725.
• Citation: 108 Ohio St.3d 1,840 N.E.2d 582,2005 Ohio 5362
• Parties: The STATE ex rel. CHOICES FOR SOUTH-WESTERN CITY SCHOOLS et al. v. ANTHONY Jr. et al.
• Court: Ohio Supreme Court

Page 582

840 N.E.2d 582

108 Ohio St.3d 1

2005-Ohio-5362

The STATE ex rel. CHOICES FOR SOUTH-WESTERN CITY SCHOOLS et al. v. ANTHONY Jr. et al.

No. 2005-1725.

Supreme Court of Ohio.

Submitted September 30, 2005.

Decided October 10, 2005.

Langdon & Shafer, L.L.C., and David R. Langdon; Finney, Stagnaro, Saba & Klusmeier and Christopher P. Finney, for relators.

Ron O'Brien, Franklin County Prosecuting Attorney, and Patrick J. Piccininni, Assistant Prosecuting Attorney, for respondents.

Schottenstein, Zox & Dunn Co., L.P.A., John P. Gilligan, Stephen J. Smith, and John C. McDonald, for intervening respondents.

Richard J. Dickinson and Patrick J. Schmitz, urging denial of a writ for amicus curiae Ohio School Boards Association.

Linda K. Fiely, General Counsel, Ohio Education Association; Kalniz, Iorio & Feldstein Co., L.P.A., and Christine A. Reardon, urging denial of a writ for amici curiae Ohio Education Association and South-Western Education Association, OEA/NEA.

PER CURIAM.

{¶ 1} This is an expedited election case in which relators seek either a writ of mandamus or a writ of prohibition to compel a board of elections and its members to submit a purported levy-decrease question to the electorate at the November 8, 2005 general election.

{¶ 2} The South-Western City School District is located in the southwestern quadrant of Franklin County, Ohio. It is the sixth largest school district in Ohio, with approximately 21,000 students enrolled in 34 schools within the district.

{¶ 3} In August 1994, district voters approved an operating levy of 8.9 mills, which the school district had projected would fund district operations until 1998. By careful management, the South-Western City School District Board of Education stretched the 1994 levy beyond the projected date, even though the district grew by nine schools and over 3,200 students during that period.

{¶ 4} Before 2004, the school board determined that the 1994 levy would be insufficient to cover all operating expenses for fiscal year 2006 and attempted to pass new tax levies in November 2004 and February 2005. Both levies were defeated.

{¶ 5} In February 2005, faced with the prospect of a budget deficit for the district, the school district's board of education filed a resolution with the Franklin County Board of Elections to submit to district electors a proposed tax levy of 9.7 mills for the May 3, 2005 primary election ballot pursuant to R.C. 5705.217. The board of elections certified the issue to the May 3, 2005 election ballot as Issue No. 31, which contained the following language:

"# 31 PROPOSED TAX LEVY

"SOUTH-WESTERN CITY SCHOOL DISTRICT

{¶ 6} "An additional tax for the benefit of the South-Western City School District for the purpose of CURRENT OPERATING EXPENSES at a rate of 7.7 mills and THE ACQUISITION, CONSTRUCTION, ENLARGEMENT, RENOVATION AND FINANCING OF PERMANENT IMPROVEMENTS, at a rate of 2 mills to constitute a tax at a rate not exceeding 9.7 mills for each one dollar of valuation, which amounts to $0.97 for each one hundred dollars of valuation, for a continuing period of time, commencing in 2005, first due in calendar year 2006." (Emphasis sic and boldface deleted.)

{¶ 7} On May 3, 2005, school district electors voted to approve the levy by a margin of 18,049 to 16,302. The levy was the only levy for the direct benefit of the South-Western City School District on the May 3, 2005 election ballot.

{¶ 8} Relator Choices for South-Western City Schools is a political action committee that sponsored a petition proposing a "decrease" of the voter-approved levy. Relators Kathy Larzelere, Larry Mitchell, and Fred Van Order are school district taxpayers and electors who signed the petition. Relators Larzelere, Mitchell, Van Order, and other persons began circulating part-petitions on May 15, 2005, and continued circulating them as late as August 17, 2005.

{¶ 9} On August 18, 2005, pursuant to R.C. 5705.261, relators submitted the petition to the board of elections. The petition contained 3,732 signatures. The petition proposed the following question, titled "PETITION FOR A LEVY DECREASE BY A SUBDIVISION," for submission to the district electors on the November 8, 2005 election ballot:

{¶ 10} "We the undersigned, being qualified electors residing in the South-Western City School District respectfully petition for an election to be held on the question of decreasing the increased rate of the levy which was approved at the election held on May 3, 2005 (Issue 31), for a continuing period of time for the benefit of the South-Western City School District for the purpose of providing current expenses (7.7 mills) and general ongoing permanent improvements (2.0 mills), such decrease to be from the voted millage of 9.7 mills to 0.00 (Zero) mills, being a reduction of 9.7 mills; said question to be presented at the November 2005 general election; all in accordance with sections 3501.38 and 5705.261 of the Ohio Revised Code."

{¶ 11} On August 30, 2005, the board of elections certified that relators' petition contained sufficient valid signatures. The board certified the question to the November 8, 2005 ballot as Issue No. 79, entitled "PROPOSED DECREASE OF RATE OF TAX LEVIED FOR A CONTINUING PERIOD OF TIME (By Initiative Petition) SOUTH-WESTERN CITY SCHOOL DISTRICT," and prepared the following language for the issue:

{¶ 12} "At an election held on May 3, 2005 voters approved a tax levy of 9.7 mills for a continuing period of time for the benefit of the South-Western City School District for the purpose of current expenses (7.7 mills) and general ongoing permanent improvements (2 mills). A petition filed by electors proposes a decrease in the rate of the tax to 0.0 mills; being a reduction of 9.7 mills.

{¶ 13} "Shall the tax be reduced from 9.7 mills to 0.0 mills?"

{¶ 14} On September 2, 2005, 13 individuals, including the five members of the school board, filed a protest against relators' petition with the board of elections. The protesters claimed that the petition was defective because (1) it exceeded the scope of R.C. 5705.261 and 5705.217 by seeking a repeal of the May 2005 levy instead of a decrease in it, (2) R.C. 5705.261 would be unconstitutional as applied if construed to encompass repeals of voter-approved levies, and (3) the petition's summary of the May 2005 levy was misleading. For their argument concerning what they described as a summary, the protesters claimed that the petition was misleading because (1) relators incorrectly titled the petition as a referendum on a levy decrease even though they actually sought a repeal of the levy, (2) relators loosely summarized the specific improvements in the voter-approved tax levy as "general ongoing permanent improvements," (3) relators stated that 7.7 mills of the voter-approved tax levy would be used for "current expenses" instead of the levy language of "current operating expenses," and (4) relators omitted the approved tax-levy language that the increased millage would amount to "$0.97 for each one hundred dollars of valuation."

{¶ 15} The school board and the protesters had notified the board of elections at its August 30 meeting that they reserved the right to protest the petition. According to the director of the board of elections, it was the board's practice not to conduct hearings on protests challenging issue petitions prior to the board's certification of the issue to the ballot and that even if the protesters had submitted their protest before the August 30 meeting, the board would not have conducted a hearing until September 7.

{¶ 16} On September 7, 2005, the board of elections held a hearing on the protest. At the conclusion of the hearing, the board of elections sustained the protest and removed the issue from the November 8, 2005 election ballot.

{¶ 17} On September 14, relators filed this expedited election case. They request a writ of mandamus or, in the alternative, a writ of prohibition to compel the board of elections to place the question proposed by relators' petition back on the November 8, 2005 election ballot. Respondents filed an answer, and the court granted the motion of the school district board of education and the protesters to intervene as additional respondents. 106 Ohio St.3d 1520, 2005-Ohio-4947, 834 N.E.2d 823. The parties filed evidence and briefs pursuant to the accelerated schedule in S.Ct.Prac.R. X(9). In addition, the Ohio School Boards Association, the Ohio Education Association, and the South-Western Education Association, Ohio Education Association/National Education Association ("OEA/NEA") submitted amicus curiae briefs in support of respondents.

{¶ 18} This cause is now before the court for a consideration of the merits.

Laches

{¶ 19} Intervening respondents initially assert that laches bars relators' claims for extraordinary relief. Relators counter that the board of elections erred in not denying the protest based on the protesters' laches in submitting their protest to the board.

{¶ 20} "We have consistently required relators in election cases to act with the utmost diligence." Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 19. If relators do not exercise the required diligence, laches may bar the action for extraordinary relief in an election-related matter. Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St.3d 256, 2004-Ohio-812, 804 N.E.2d 419, ¶ 14.

{¶ 21} Intervening respondents claim that relators could have filed their petition much earlier than August 18. But R.C. 5705.261 expressly authorizes electors to request a decrease of an increased rate of a voter-approved levy for a continuing period to file their petition "not less than seventy-five days before the general election in any year requesting that an election be held on such question" and further allows one petition to be filed "during each five-year period following the election...