Opinion

State ex rel. New Carlisle v. Clark Cty. Bd. of Elections

  • 178 Ohio St. 3d 289
  • 258 N.E.3d 361
  • 2025 Ohio 814
Court
Ohio Supreme Court
Filed
Mar 11, 2025
Status
Published
Cited by
2 cases
Authority
More cited than 49.2%

The opinion

[This opinion has been published in Ohio Official Reports at 178 Ohio St.3d 289.]

THE STATE EX REL . THE CITY OF NEW CARLISLE v. CLARK COUNTY BOARD

OF ELECTIONS ET AL.

[Cite as State ex rel. New Carlisle v. Clark Cty. Bd. of Elections,

2025-Ohio-814.]

Mandamus—Elections—R.C. 718.04(C)(2)—Board of elections disregarded

applicable law set forth in R.C. 718.04(C)(2) when it rejected city council’s

request to have proposed ordinance for continuation of an excess municipal

income tax placed on the May 6, 2025 primary-and-special-election

ballot—Writ granted.

(No. 2025-0247—Submitted March 6, 2025—Decided March 11, 2025.)

IN MANDAMUS.

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,

DEWINE, BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ.

Per Curiam.

{¶ 1} An Ohio municipal corporation may not levy an income tax greater

than 1 percent “without having obtained the approval of the excess by a majority of

[its] electors” at a general, primary, or special election. R.C. 718.04(C)(2). To

have the issue of an excess income tax placed on the ballot, the municipal

corporation must file with the board of elections at least 90 days before the election

“a copy of the ordinance together with the resolution specifying the date the election

is to be held.” Id.

{¶ 2} Relator, the City of New Carlisle (“New Carlisle” or “the city”), wants

to place before its electors an ordinance authorizing the continuation of a 0.5

percent increase in the municipal income tax for the purpose of paying police

SUPREME COURT OF OHIO

expenses (“the income-tax levy”). Respondent Clark County Board of Elections

(“the board”) refused to place the income-tax levy on the ballot because, in its view,

R.C. 718.04(C)(2) requires the city to pass an ordinance approving the income-tax

increase before submitting the income-tax levy to the board for placement on the

ballot. New Carlisle commenced this expedited election action against the board

and its director, respondent Jason Baker, seeking a writ of mandamus ordering

Baker and the board to place the income-tax levy on the May 6, 2025 primary-and-

special-election ballot. Because the parties agree that Baker is not a proper

respondent in this action, we dismiss the action as to him. But we grant the

requested writ of mandamus against the board because the board’s interpretation of

R.C. 718.04(C)(2) is incorrect.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Process for Placing a Municipal-Income-Tax Levy on the Ballot

{¶ 3} A municipal corporation may levy an income tax under the provisions

and limitations set forth in R.C. Ch. 718. See R.C. 718.04(A). Any municipal

corporation that levied an income tax in excess of 1 percent on or before

March 23, 2015, is authorized to continue levying the tax at that rate in accordance

with the original ordinance or resolution authorizing the tax. R.C. 718.04(B).

Otherwise, “no municipal corporation shall levy a tax on income at a rate in excess

of one percent without having obtained the approval of the excess by a majority of

the electors of the municipality voting on the question at a general, primary, or

special election.” R.C. 718.04(C)(2). The requirements for placing an income-tax

levy in excess of 1 percent on the ballot are outlined in R.C. 718.04(C)(2) as

follows:

The legislative authority of the municipal corporation shall file with

the board of elections at least ninety days before the day of the

election a copy of the ordinance together with a resolution

2

January Term, 2025

specifying the date the election is to be held and directing the board

of elections to conduct the election. The ballot shall be in the

following form: “Shall the Ordinance providing for a ___ per cent

levy on income for (Brief description of the purpose of the proposed

levy) be passed?

FOR THE INCOME TAX

AGAINST THE INCOME TAX ”

In the event of an affirmative vote, the proceeds of the levy may be

used only for the specified purpose.

(Emphasis added; capitalization in original.)

{¶ 4} At issue here is what the statute means when it says the legislative

authority of the municipal corporation must file “a copy of the ordinance” with the

board of elections to place an income-tax levy on the ballot.

B. New Carlisle’s Income-Tax Levy

{¶ 5} In 2015, New Carlisle voters passed an ordinance increasing the

municipal income tax from 1 percent to 1.5 percent for five years for the purpose

of paying police expenses, and in 2019, they approved a continuation of the 0.5

percent increase for five more years. The 0.5 percent increase is scheduled to expire

on June 30, 2025.

{¶ 6} In December 2024, the New Carlisle City Council passed Resolution

2024-19R, asking the board to place on the May 6, 2025 ballot an issue to extend

the collection of the additional 0.5 percent income tax through June 30, 2030. The

resolution specified that the purpose of the additional 0.5 percent income tax was

to pay police expenses. On the same day the city council passed the resolution, it

introduced Ordinance 2024-76, which would amend New Carlisle’s codified

ordinances to provide that an additional 0.5 percent income tax would be collected

from July 1, 2025, through June 30, 2030. The city council gave Ordinance 2024-

3

SUPREME COURT OF OHIO

76 a first reading but did not vote on it. The city council attached the ordinance as

Exhibit A to Resolution 2024-19R and incorporated it therein.

{¶ 7} New Carlisle filed Resolution 2024-19R with the board on

December 19, 2024, more than a month and a half before the deadline to request

that an issue be placed on the May 6, 2025 primary-and-special election ballot. At

its February 11 meeting, the board voted against placing the income-tax levy on the

ballot because the city council had not passed Ordinance 2024-76 before submitting

it to the board with Resolution 2024-19R.

{¶ 8} New Carlisle commenced this action on February 14 and filed an

amended complaint five days later, seeking a writ of mandamus ordering the board

and its director, Baker, to place the income-tax levy on the May 6, 2025 primary-

and-special-election ballot. The board and Baker filed an answer, admitting the

material factual allegations but denying that New Carlisle is entitled to a writ of

mandamus. The parties filed an “Agreed Statement of Facts” and briefs in

accordance with the schedule for expedited election cases under S.Ct.Prac.R. 12.08.

New Carlisle filed evidence with its merit brief.

II. ANALYSIS

A. Dismissal of Respondent Baker

{¶ 9} The parties agree that Baker does not owe a clear legal duty to New

Carlisle to place the income-tax levy on the May 6, 2025 ballot “unless directed to

do so” by the board. Consistent with this stipulation, in its briefs, New Carlisle

requests that this court issue a writ of mandamus against only the board, and the

board and Baker ask us to dismiss the mandamus claim as to Baker. Accordingly,

we dismiss this action as to Baker.

B. Mandamus Claim Against the Board

{¶ 10} To obtain a writ of mandamus against the board, New Carlisle must

establish by clear and convincing evidence (1) a clear legal right to have the

income-tax levy placed on the May 6, 2025 ballot, (2) a clear legal duty on the part

4

January Term, 2025

of the board to place it on the ballot, and (3) the lack of an adequate remedy in the

ordinary course of the law. State ex rel. White v. Franklin Cty. Bd. of Elections,

2020-Ohio-524, ¶ 6. In this case, New Carlisle lacks an adequate remedy in the

ordinary course of the law because the election is less than two months away. See

State ex rel. Clark v. Twinsburg, 2022-Ohio-3089, ¶ 16.

{¶ 11} To ascertain whether New Carlisle has proved the remaining

elements here, we must determine whether the board has engaged in fraud or

corruption, abused its discretion, or acted in clear disregard of applicable legal

provisions by refusing to place the income-tax levy on the ballot. See State ex rel.

Mann v. Delaware Cty. Bd. of Elections, 2015-Ohio-718, ¶ 13. New Carlisle has

not alleged fraud or corruption by the board here. Therefore, the relevant inquiry

is whether the board abused its discretion or clearly disregarded applicable law in

refusing to place the income-tax levy on the May 6, 2025 primary-and-special-

election ballot.

{¶ 12} The outcome of this case turns on the meaning of one phrase—“a

copy of the ordinance”—in R.C. 718.04(C)(2). At least 90 days before the May 6,

2025 election, New Carlisle filed with the board the following: (1) Resolution

2024-19R, asking the board to place the income-tax levy on the upcoming-election

ballot and (2) a copy of Ordinance 2024-76, which would become law if the

income-tax levy were approved by voters at the election. The board, however,

rejected the city’s request to place the income-tax levy on the ballot, because the

city council had not yet passed an ordinance pertaining to that levy. In other words,

according to the board, the “copy of the ordinance” that New Carlisle must file

under R.C. 718.04(C)(2) is an ordinance that the city has already enacted and wants

to present to the municipality’s electors for passage. New Carlisle argues that the

city council did not have to pass Ordinance 2024-76 before submitting it to the

board with Resolution 2024-19R, because under R.C. 718.04(C)(2), it is the city’s

electors who must pass the ordinance approving the excess municipal income tax.

5

SUPREME COURT OF OHIO

{¶ 13} We agree with the city’s interpretation of R.C. 718.04(C)(2).

1. “Copy of the Ordinance” Means the Proposed Ordinance to Be Submitted to

the Voters

{¶ 14} To determine what R.C. 718.04(C)(2) requires, we begin by

reviewing the plain language of the statute. See Total Renal Care, Inc. v. Harris,

2024-Ohio-5685, ¶ 13. In doing so, we are required to “read words and phrases in

context and construe them in accordance with rules of grammar and common

usage.” State ex rel. Russell v. Thornton, 2006-Ohio-5858, ¶ 11. We must also

read the statute as a whole: we “cannot pick out one sentence and disassociate it

from the context, but must look to the four corners of the enactment to determine

the intent of the enacting body.” State v. Wilson, 1997-Ohio-35, ¶ 9; see also K

Mart Corp. v. Cartier, 486 U.S. 281, 291 (1988) (“In ascertaining the plain meaning

of the statute, the court must look to the particular statutory language at issue, as

well as the language and design of the statute as a whole.”).

{¶ 15} To levy a municipal income tax in excess of 1 percent, a municipality

must obtain approval for the ordinance imposing the tax increase by a majority vote

of the municipality’s electors. See R.C. 718.04(C)(2). To have such a levy placed

on the ballot, the legislative authority of the municipal corporation must timely file

with the board of elections “a copy of the ordinance together with a resolution

specifying the date the election is to be held.” (Emphasis added.) Id. In the next

sentence of the statute, the General Assembly specifies that the ballot shall use the

following language: “‘Shall the Ordinance providing for a __ per cent levy on

income . . . be passed?’” (Emphasis added.) Id. Thus, in consecutive sentences,

the statute uses the same words—“the ordinance”—to describe both what the

legislative authority of the municipal corporation must file with the board of

elections (along with its resolution specifying the date the election is to be held)

and what will be on the ballot for voter approval.

6

January Term, 2025

{¶ 16} The structure of R.C. 718.04(C)(2) indicates that “the ordinance,” as

that term is used in the statute, means the ordinance that is being presented to the

voters for approval. And under the statute, it is the voters who decide whether “the

ordinance” will be passed. The statute does not require the municipality’s

legislative authority to have passed the ordinance that would impose the excess

municipal income tax before it is placed on the ballot. Indeed, the first sentence of

R.C. 718.04(C)(2) makes clear that “no municipal corporation shall levy” an

income tax in excess of 1 percent without first having obtained voter approval. All

that R.C. 718.04(C)(2) requires is for New Carlisle to do exactly what it did here—

timely file with the board (1) its resolution directing the board to conduct an

election on a specified date and (2) a copy of the ordinance that the city’s electors

would be voting on.

2. The Board Misreads the Statute

{¶ 17} Under its interpretation of R.C. 718.04(C)(2), the board would

require New Carlisle to pass Ordinance 2024-76 before submitting it to the voters.

But the board’s arguments in support of its interpretation of the statute are

unpersuasive.

{¶ 18} To “pass” an ordinance means “[t]o enact” it into law. Black’s Law

Dictionary (10th Ed. 2014); see also id. (defining “enact” as “[t]o make into law by

authoritative act; to pass”). But R.C. 718.04(C)(2) makes clear that a municipal

corporation may not levy an income tax in excess of 1 percent without voter

approval. Thus, the municipal corporation cannot enact legislation allowing it to

levy the excess income tax without first obtaining voter approval to do so. Yet the

board insists that New Carlisle has to do just that—“pass” an ordinance enacting

into law the 1.5 percent municipal income tax that the city is required by state law

to submit to the voters. The board’s interpretation of R.C. 718.04(C)(2) cannot be

correct, because that interpretation would require the city to “pass” an ineffectual

ordinance.

7

SUPREME COURT OF OHIO

{¶ 19} The board, however, contends that it is possible for both the city

council and the city’s voters to “pass” an ordinance. The board argues that

requiring the New Carlisle City Council to pass the excess-income-tax ordinance

before obtaining voter approval for the ordinance is a logical interpretation of the

statute because the words “pass” and “approve” are synonymous in the context of

giving effect to legislation. With that premise as the starting point, the board points

out that other statutory and constitutional provisions allow voters to “approve” an

ordinance that has been “passed” by a municipal corporation’s legislative authority.

{¶ 20} In support of its argument, the board first cites Article XVIII, Section

5 of the Ohio Constitution, which states that a municipality “shall act by ordinance”

to acquire, construct, own, lease, or operate a public utility (or to contract with any

person or company therefor), but if a valid referendum petition is filed before the

effective date of the ordinance, that ordinance shall not take effect “until submitted

to the electors and approved by a majority” of the voters. But the analogy the board

attempts to make between this constitutional provision and R.C. 718.04(C)(2) does

not work to support its argument. Under the constitutional provision cited by the

board, the ordinance passed by the municipality would have the force and effect of

law but for the filing of a valid referendum petition. R.C. 718.04(C)(2), however,

does not require that voters demand a referendum to prevent an ordinance imposing

an excess municipal income tax from taking effect. On the contrary, under

R.C. 718.04(C)(2), an ordinance to levy an excess municipal income tax cannot be

effective unless it is first approved by voters. See id. The board’s analogy to the

referendum process is inapt.

{¶ 21} The board next cites R.C. 715.84, which governs agreements among

two or more municipal corporations to share the costs for improvements in a

designated municipality utility district. See R.C. 715.84(B). Specifically, the board

relies on R.C. 715.84(E), which provides that “each contracting party may enact an

ordinance approving the contract” to designate a municipal utility district and that

8

January Term, 2025

once enacted, the ordinance must be submitted to the electors of each contracting

municipality for approval using the ballot language set forth in R.C. 715.84(F).

However, the language of R.C. 715.84 undermines, rather than supports, the

board’s position. That statute expressly provides that contracting municipal

corporations may “enact” an ordinance “approving the contract” to designate a

municipal utility district but that the contract does not go into effect until a majority

of the electors of each municipality in the designated district vote for it.

R.C. 715.84(E) and (F). The process described in that statute expressly provides

for the enactment of an ordinance approving a contract followed by voter approval

of the ordinance. In contrast, the statute at issue in this case calls only for an

ordinance to be submitted to voters for approval; it does not state that the municipal

legislative authority must first enact that ordinance. See R.C. 718.04(C)(2).

3. Absence of the Phrase “Proposed Ordinance” in the Statute Is Immaterial

{¶ 22} The board also argues that New Carlisle’s interpretation of R.C.

718.04(C)(2) cannot be correct, because the statutory language calls for “a copy of

the ordinance,” not a copy of the “proposed ordinance,” to be filed with the board.

The board contends that the General Assembly knows how to use the phrase

“proposed ordinance” when it means to do so and that because the General

Assembly did not use that phrase in R.C. 718.04(C)(2), only an ordinance “actually

passed by the legislative authority of the municipal corporation” will suffice to

qualify a municipal-income-tax levy for placement on the ballot. We disagree.

{¶ 23} The three statutes that the board cites to show how the General

Assembly uses the phrase “proposed ordinance” prove nothing about what R.C.

718.04(C)(2) means. First, the board points to R.C. 705.15, which outlines the

powers of a municipal corporation’s legislative authority. That statute provides that

“[e]ach proposed ordinance or resolution shall be in written or printed form, and

shall contain not more than one subject which shall be clearly stated in the title.”

Next, the board directs us to R.C. 743.45, which sets forth the ability of a municipal

9

SUPREME COURT OF OHIO

legislature to ask the Public Utilities Commission of Ohio “to review and comment

upon the equity and financial implications of the portion of a proposed ordinance

that relates to” electric-utility rates. Finally, the board cites R.C. 5709.45, which

prescribes the process by which a municipal corporation may create a downtown-

development district and exempt improvements in the district from taxation.

R.C. 5709.45(G)(1) provides that the legislative authority of the municipal

corporation “shall send notice of the proposed ordinance to the school district” and

that it must include with the notice “a copy of the proposed ordinance and . . .

indicate the date on which the legislative authority intends to adopt the ordinance.”

{¶ 24} None of these statutes are structured like R.C. 718.04(C)(2). Indeed,

none of them arise in the context of an ordinance that cannot be enacted without

voter approval. Each of the statutes cited by the board discusses a “proposed

ordinance” in the context of either the procedural requirements for a proposed

ordinance (R.C. 705.15) or a municipal legislature’s passage of an ordinance that it

has the authority to pass without voter approval (R.C. 743.45 and 5705.45(G)(1)).

In contrast, the ordinance that the municipal legislative authority must submit to

the board of elections with its resolution under R.C. 718.04(C)(2) is necessarily a

proposed ordinance because the ordinance cannot be passed without voter approval.

Therefore, the absence of the word “proposed” to describe the ordinance referred

to in R.C. 718.04(C)(2) is of no moment.

{¶ 25} The General Assembly’s use of the phrase “a copy of the ordinance”

in R.C. 718.04(C)(2) refers to the proposed ordinance being submitted to the

municipality’s electors for approval. It cannot mean anything else. That the

General Assembly did not use the phrase “proposed ordinance” is of no

significance, given the overall context of the statute at issue here.

10

January Term, 2025

4. The Ohio Secretary of State’s Interpretation of R.C. 718.04(C)(2) Is

Unpersuasive Authority

{¶ 26} Finally, the board relies on the Ohio Ballot Questions and Issues

Handbook published by the Ohio Secretary of State in support of its position. In

the chapter pertaining to the procedure for elections under R.C. 718.04(C)(2), the

secretary opines that “[t]he legislative authority of the municipal corporation

wishing to impose an income tax greater than 1 percent must pass an ordinance

authorizing the income tax.” (Emphasis added; boldface in original.) Ohio Ballot

Questions and Issues Handbook, Chapter 4: Income Tax for Municipal

Corporations and School Districts, at 38, https://www.ohiosos.gov/globalassets

/elections/eoresources/general/questionsandissues.pdf#page=38 (accessed Mar. 6,

2025) [https://perma.cc/CN2F-K75P].

{¶ 27} This court is not required to defer to the secretary of state’s

interpretation of election law. See State ex rel. Hildreth v. LaRose, 2023-Ohio-

3667, ¶ 22, citing TWISM Ents., L.L.C. v. State Bd. of Registration for Professional

Engineers & Surveyors, 2022-Ohio-4677, ¶ 3. The board acknowledges as much

but asks us to regard the secretary’s interpretation as “persuasive authority in this

case” because, the board reasons, the secretary’s vast experience in overseeing the

administration of elections statewide “should count for something.”

{¶ 28} The secretary’s interpretation of R.C. 718.04(C)(2) does not carry

the day; it is a flawed interpretation that the board should not have adopted and one

that this court will not follow. Indeed, we have declined to follow the secretary’s

interpretation of election statutes when we have found the interpretation to be

erroneous. See Hildreth at ¶ 22-23.

III. CONCLUSION

{¶ 29} We dismiss this cause as to respondent Baker only. As for the board,

we conclude that it clearly disregarded applicable law in rejecting the income-tax

levy submitted by New Carlisle for placement on the May 6, 2025 primary-and-

11

SUPREME COURT OF OHIO

special-election ballot. We therefore grant a writ of mandamus ordering the board

to place the income-tax levy submitted by New Carlisle on the May 6, 2025 ballot.

Writ granted.

__________________

Jeffries & Hollingsworth Law, L.L.C., and Jacob M. Jeffries; and Baker

Dublikar and Tonya J. Rogers, for relator.

Daniel P. Driscoll, Clark County Prosecuting Attorney, and Andrew P.

Pickering, Assistant Prosecuting Attorney, for respondents.

__________________

12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.