Washington County Taxpayers Association v. Dorothy K. Peppel, Treasurer of Washington County

• Decision Date: 23 January 1992
• Docket Number: 91CA17,92-LW-0084
• Parties: WASHINGTON COUNTY TAXPAYERS ASSOCIATION, et al., Plaintiff-Appellants v. DOROTHY K. PEPPEL, TREASURER OF WASHINGTON COUNTY, et al., Defendant-Appellees Case
• Court: Ohio Court of Appeals

WASHINGTON COUNTY TAXPAYERS ASSOCIATION, et al Plaintiff-Appellants v. DOROTHY K. PEPPEL, TREASURER OF WASHINGTON COUNTY, et al., Defendant-Appellees

No. 91CA17

92-LW-0084 (4th)

Court of Appeals of Ohio, Fourth District Washington

January 23, 1992

DECISION AND JUDGMENT ENTRY

Robert L. Hausser, Marietta, Ohio, and William J. Christensen Columbus, Ohio, for Appellants.

Roland W. Riggs III, Marietta City Law Director, Marietta, Ohio, for Appellees.

Patrick A. Devine, Assistant Attorney General, Columbus, Ohio, urging affirmance for Amicus Curiae, Lee Fisher, Ohio Attorney General.

Stephenson P.J.

This is an appeal from a judgment entered by the Washington County Court of Common Pleas granting a summary judgment to appellees and dismissing the action previously filed against them by appellants.^[1] Appellants assign the following errors:

"1. The Court of Common Pleas erred in holding that the sole remedy available to Plaintiffs [in asserting the failure of the Marietta City Board of Education to obtain the consents of the Superintendent of Public Instruction and of the State Tax Commissioner before submitting the bond issue to the electors, and prior to thirty days of the election, as required by division (C) of R.C. Section 133.06] was by petition filed with the Clerk of the Court of Common Pleas within fifteen days after the result of the election was ascertained and announced, as specified in R.C. Section 3519.09.

2. The Court erred in holding that the consents of the Superintendent of Public Instruction and the State Tax Commissioner before the Marietta City Board of Education might submit the bond issue [the passage of which would make the District's net indebtedness (after the issuance of the securities) exceed an amount equal to four percent of its tax valuation] were procedural in nature, rather than substantive; so that the failure to obtain the consents was cured by the passage of Amended Substitute House Bill 61 of the 119th General Assembly.

3. The Court erred in holding that the passage of Am.Subs.H.B. [sic] 61 on March 14, 1991 [intended to cure the failure of the Marietta City Board of Education to obtain the consents of the two State officers before submitting the bond issue to the electors] was not retroactive in nature, hence did not violate the Ohio Constitution, Section 28 prohibiting such retrospective laws.

4. The Court erred in holding that Am.Sub.H.B. [sic] 61 did not deprive Plaintiffs of any property rights, hence did not deprive them of any property rights without due process.

5. The Court erred in holding that the disparate and unrelated subjects contained in Am.Sub.H.B. [sic] 61 did not violate Ohio Constitution, Article II Legislative, Section 15, providing that "(D) No bill shall contain more than one subject which shall be clearly expressed in its title.

6. The Court erred in holding that the Plaintiffs -Appellants have failed to sustain their burden in challenging the constitutionality of Am.Sub.H.B. [sic] 61.

The record reveals the following facts pertinent to this appeal. On November 6, 1990, voters residing in the Marietta City School District (hereinafter referred to as the "school district") approved, by majority vote, a bond issue in the principal amount of $10,320,000.00 with proceeds therefrom to be used for general improvements to school facilities within the school district. The bond issue was to be repaid over a maximum of fifteen (15) years with such repayment to be funded by a real property tax levy, outside of the ten mill limitation, to average 4.64 mills for each one dollar of valuation, or $0.464 for each one hundred dollars of valuation.^[2]

On February 17, 1991, appellants commenced the action below seeking both a declaratory judgment that the bond issue and tax levy were invalid and a permanent injunction to prevent implementation of the same.^[3] The averments giving rise to this action were that the bond issue caused the school district's net indebtedness to exceed an amount equal to four percent (4%) of the tax valuation thereof. Appellants further alleged that, under such circumstances, appellee Marietta City Board of Education, was required to procure supervisory permission under R.C. 133.06(C) before submitting the bond issue to the voters. Appellants averred that such supervisory permission had not been obtained prior to the election and, therefore, the bond issue should be withdrawn and decertified.

On March 14, 1991, before any of the appellees had filed an answer to the Complaint, the Ohio General Assembly enacted Am. Sub. H.B. No. 61 (See (1991) Baldwin's Ohio Legislative Service 5-4 through 5-6) which provided, in pertinent part, as follows:

"SECTION 3. In any case in which the Superintendent of Public Instruction determines that because of ministerial error or oversight the consents of that Superintendent and the Tax Commissioner contemplated by division (C) of section 133.06 of the Revised Code were not requested by a school district and therefore were not given prior to an election held on November 6, 1990, those consents shall be considered to have been given if the school district requests the consents, the Superintendent of Public Instruction and the Tax Commissioner each certifies that there is no reason that consent, had it been requested, would not have been given prior to the election, and those consents are now given. The provisions of this section shall apply notwithstanding anything to the contrary in division (C) of section 133.06 of the Revised Code or related policies or rules, and shall apply to those elections and related consents, and to the proceedings relating to those elections and to the issuance of the bonds or notes issued in anticipation of those bonds approved by a majority of the voters of the school district at those elections. * * *"^[4]

On March 18, 1991, appellants moved for leave to file a supplemental complaint pursuant to Civ. R. 15(E) in order to challenge the constitutionality of Am. Sub. H.B. No. 61. Such leave was, subsequently, granted and on March 20, 1991, appellants filed their supplemental complaint. This pleading incorporated all allegations and prayers for relief as were set forth in the original complaint and, additionally, sought to have Am. Sub. H.B. No. 61 declared unconstitutional. In support of that request, appellants alleged that section three of that legislation was passed in order to "cure the defects and insufficiencies of the Marietta City School District election of November 6, 1990." Appellants further averred that the enactment was unconstitutional because it was discriminatory, retroactive, "extinguished a vested legal relation" and contained more than one-subject matter. Appellees filed their answers denying all allegations of invalidity and further contending that the action should be dismissed for, among other reasons, mootness and the operation of the statute of limitations applicable to election contests under R.C. 3515.09.

On April 15, 1991, a motion for summary judgment was filed on the grounds that, as a matter of law, appellants' complaint failed to state a claim upon which relief could be granted and, therefore, it should be dismissed.^[5] First, appellees argued that the only permissible method by which appellants could have challenged the bond issue was through an election contest action which could only be commenced within fifteen (15) days after the election results had been ascertained. See R.C. 3515.08 & 3515.09. Appellees attached, as an exhibit, evidence that the bond election had been officially announced by the Washington County Board of Elections on November 20, 1990, and no election contest had been filed within fifteen days after the election. Thus, appellees concluded, appellants were outside the permitted time frame to challenge the bond issue through an election contest and were further foreclosed from any other method to challenge it. Appellees also argued that the curative legislation enacted as part of Am. Sub. H.B. No. 61 rendered all of appellants' claims as moot.

Appellants filed their memorandum contra summary judgment and argued, in essence, that the curative legislation enacted by the Ohio General Assembly was unconstitutional and, therefore, incapable of eliminating any defects or irregularities which occurred in submitting the bond issue to the voters in Washington County. Further, appellants argued that they were not limited to an election contest action as the sole method by which to challenge that issue. Thus, appellants concluded, the motion for summary judgment should be denied.

On June 5, 1991, the court rendered its decision and found that any defect in obtaining consent before placing the bond issue to the voters of Washington County was cured by the passage of Am. Sub. H.B. No. 61. The court further ruled that such legislation was valid and constitutional. A judgment entry to that effect was entered on June 13, 1991, and this appeal followed.

In their first assignment of error, appellants argue that the trial court erred in holding that the sole remedy available for them to challenge the bond issue below was through an election contest action brought pursuant to R.C. Chapter 3515. However, after reviewing the record, we cannot ascertain that the trial court ever made such a ruling. Indeed, the judgment entered below is silent with respect to this issue and the court's decision reveals the following:

"This court is not convinced by Defendants' [Appellee's] argument that Section 3515.08 O.R.C. et seq. constitutes the sole and exclusive method of raising the issue of a defective election." (Emphasis added.)

Thus notwithstanding appellants' assertion to the contrary, it does not appear that the trial court confined them to an election...