State ex rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack

[This opinion has been published in Ohio Official Reports at 86 Ohio St.3d 293.]

THE STATE EX REL. BOARD OF COMMISSIONERS OF MILL CREEK

METROPOLITAN PARK DISTRICT, APPELLEE, v. TABLACK, AUDITOR, ET AL.;

CITY OF CAMPBELL ET AL., APPELLANTS.

[Cite as State ex rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack,

1999-Ohio-103.]

Parks—Withdrawal of municipalities from a park district—Mandamus to compel

Mahoning County Auditor and Mahoning County Treasurer to continue

assessing, collecting, and paying Board of Park Commissioners of Mill

Creek Metropolitan Park District the park tax on all taxable real estate in

the city of Campbell and the municipality of Sebring—Writ granted, when.

(No. 99-261—Submitted July 28, 1999—Decided September 1, 1999.)

APPEAL from the Court of Appeals for Mahoning County, No. 97 CA 240.

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{¶ 1} On May 3, 1988, Mahoning County electors approved the conversion

of the Youngstown Township Park District to the Mill Creek Metropolitan Park

District (“Park District”) pursuant to the procedure specified in R.C. 1545.041.1

1. R.C. 1545.041 provides:

“(A) Any township park district created pursuant to section 511.18 of the Revised Code

that includes park land located outside the township in which the park district was established may

be converted under the procedures provided in this section into a park district to be operated and

maintained as provided for in this chapter, provided that there is no existing park district created

under section 1545.04 of the Revised Code in the county in which the township park district is

located. The proposed park district shall include within its boundary all townships and municipal

corporations in which lands owned by the township park district seeking conversion are located, and

may include any other townships and municipal corporations in which lands owned by the township

park district seeking conversion are located.

“(B) Conversion of a township park district into a park district operated and maintained

under this chapter shall be initiated by a resolution adopted by the board of park commissioners of

the park district. * * * The resolution may also include a proposed tax levy for the operation and

maintenance of the proposed park district. * * *

“(C) Upon adoption of the resolution provided for in division (B) of this section, the board

of park commissioners of the township park district seeking conversion under this section shall

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The geographic boundaries of the Park District are the same as the boundaries of

Mahoning County. At the same election, Mahoning County electors also approved

a tax for the operation and maintenance of the Park District. The tax was to be

levied on all taxable real estate within the county at a rate not to exceed $1.9 mills

for each dollar of valuation for a period of fifteen years, beginning with the 1988

tax year.

{¶ 2} At the November 1997 general election, electors of appellants, the city

of Campbell and the municipality of Sebring, approved ordinances amending their

charters to provide for the withdrawal of the municipalities from the Park District

and the exemption of their residents from the payment of any Park District tax

levied under R.C. Chapter 1545. Campbell and Sebring are both located in the Park

District. Campbell and Sebring claimed that these ordinances were authorized by

their constitutional home-rule powers.

{¶ 3} Shortly after the November 1997 election, appellee, Board of

Commissioners of the Park District (“board”), filed a complaint in the Court of

Appeals for Mahoning County for a writ of mandamus to compel the Mahoning

County Auditor and Mahoning County Treasurer to continue assessing, collecting,

and paying the board the Park District tax, including the tax on all taxable real estate

in Campbell and Sebring. The board claimed that the Campbell and Sebring

ordinances amending their charters were unconstitutional because they conflicted

with R.C. Chapter 1545. The court of appeals granted the auditor and treasurer’s

motion to join Campbell and Sebring as respondents, and Campbell and Sebring

filed motions to dismiss and for summary judgment. Campbell and Sebring filed

certify the resolution to the board of elections of the county in which the park district is located * *

*. * * * The question shall provide for a tax levy if such a levy is specified in the resolution.

“***

“(E) If the proposed conversion is approved by at least a majority of the electors voting on

the proposal, the township park district that seeks conversion shall become a park district subject to

Chapter 1545. of the Revised Code effective the first day of January following approval by the

voters. * * * ”

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January Term, 1999

affidavits of their mayors in support of their motions. The board also filed a motion

for summary judgment.

{¶ 4} In December 1998, the court of appeals granted the board’s motion

for summary judgment and granted the writ of mandamus. The court of appeals

determined that the Campbell and Sebring ordinances were unconstitutional and

that the board did not have an adequate legal remedy by way of a declaratory

judgment action.

{¶ 5} This cause is now before the court upon an appeal as of right.

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Manchester, Bennett, Powers & Ullman, John F. Zimmerman, Jr. and

Thomas J. Lipka, for appellee.

Brian J. Macala, Campbell Law Director, for appellant city of Campbell.

Nadler, Nadler & Burdman Co., L.P.A., and Robert S. Hartford, Jr., for

appellant municipality of Sebring.

Kincaid, Randall & Craine and Samuel B. Randall, urging affirmance for

amicus curiae, Columbus and Franklin County Metropolitan District.

Baker & Hostetler L.L.P., Elliot S. Azoff and Todd A. Dawson, urging

affirmance for amicus curiae, Cleveland Metropolitan Park District Board of Parks

Commissioners.

Spengler Nathanson, P.L.L., and B. Gary McBride, for amici curiae, Toledo

Area Metropolitan Park District and Hamilton County Park District.

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Per Curiam.

{¶ 6} Campbell and Sebring assert that the court of appeals erred in granting

the writ of mandamus because the board did not establish any of the requirements

for issuance of the writ. In order to be entitled to a writ of mandamus, the board

had to establish a clear legal right to the requested relief, a clear legal duty on the

part of the auditor and treasurer to provide this relief, and the lack of an adequate

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remedy in the ordinary course of law to compel them to perform the requested acts.

State ex rel. Fattlar v. Boyle (1998), 83 Ohio St.3d 123, 125, 698 N.E.2d 987, 988.

{¶ 7} Regarding the first two requirements for the writ, the dispositive issue

is whether Campbell’s and Sebring’s ordinances withdrawing the municipalities

from the Park District and exempting their residents from the previously approved

Park District tax are unconstitutional. Campbell and Sebring claim that their

ordinances were enacted pursuant to their powers of local self-government under

the Home-Rule Amendment, which authorizes Ohio municipalities “to exercise all

powers of local self-government and to adopt and enforce within their limits such

local police, sanitary and other similar regulations, as are not in conflict with

general laws.” Section 3, Article XVIII, Ohio Constitution; Linndale v. State

(1999), 85 Ohio St.3d 52, 54, 706 N.E.2d 1227, 1229. The board counters that the

ordinances are invalid because they were not enacted pursuant to the municipalities’

powers of local self-government and they conflict with the general, state laws in

R.C. Chapter 1545.

{¶ 8} In order to determine if the municipal ordinances are invalidated by

R.C. Chapter 1545, we must resolve whether (1) the challenged ordinances involve

the exercise of powers of local self-government, (2) the state statutes are general or

special laws, and (3) there is any conflict between the ordinances and state law. See

Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted (1992), 65 Ohio St.3d

242, 244-245, 602 N.E.2d 1147, 1149-1150; Fairview Park v. Barefoot Grass Lawn

Serv., Inc. (1996), 115 Ohio App.3d 306, 310, 685 N.E.2d 300, 302, discretionary

appeal not allowed (1997), 77 Ohio St.3d 1544, 674 N.E.2d 1184. For the reasons

that follow, we conclude that the Campbell and Sebring ordinances are

unconstitutional because they did not involve the exercise of the municipalities’

powers of local self-government and they conflict with the general laws in R.C.

Chapter 1545.

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January Term, 1999

{¶ 9} The first inquiry requires an analysis of whether the ordinances were

enacted pursuant to the municipalities’ powers of local self-government. We have

applied the following test:

“To determine whether legislation is such as falls within the area of local

self-government, the result of such legislation or the result of the proceedings

thereunder must be considered. If the result affects only the municipality itself,

with no extraterritorial effects, the subject is clearly within the power of local self-

government and is a matter for the determination of the municipality. However, if

the result is not so confined it becomes a matter for the General Assembly.”

Beachwood v. Cuyahoga Cty. Bd. of Elections (1958), 167 Ohio St. 369, 371, 5

O.O.2d 6, 7-8, 148 N.E.2d 921, 923; Kettering v. State Emp. Relations Bd. (1986),

26 Ohio St.3d 50, 54, 26 OBR 42, 45-46, 496 N.E.2d 983, 987.

{¶ 10} The Campbell and Sebring ordinances were not enacted pursuant to

their powers of local self-government because the ordinances have manifest

extraterritorial effects, i.e., they exempt the municipalities’ citizens from taxes

intended to benefit the larger Park District, which has boundaries coextensive with

the county.

{¶ 11} In next determining whether the provisions of R.C. Chapter 1545,

which provide for park districts, are general or special laws, we find that park

districts may exist in and affect people in every county in the state, and all of the

people of the state are benefited by these districts. Willoughby Hills v. Bd. of Park

Commrs. of Cleveland Metro. Park Dist. (1965), 3 Ohio St.2d 49, 50, 32 O.O.2d

27, 28, 209 N.E.2d 162, 163; State ex rel. Bryant v. Akron Metro. Park Dist. (1929),

120 Ohio St. 464, 471, 166 N.E. 407, 409, affirmed (1930), 281 U.S. 74, 50 S.Ct.

228, 74 L.Ed. 710. See Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 541-

542, 706 N.E.2d 323, 330. Therefore, the provisions of R.C. Chapter 1545, which

empower Campbell and Sebring to determine their own geographic boundaries and

to levy taxes to maintain and operate the Park District, are general rather than

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special laws. These general laws must be accorded a uniform operation throughout

the state. Section 26, Article II, Ohio Constitution; Desenco, Inc.

{¶ 12} For the last determination of the three-part inquiry, the Campbell and

Sebring ordinances also conflict with R.C. Chapter 1545 because they permit

Campbell and Sebring to withdraw from the Park Districts and exempt their

residents from Park District taxes in contravention of R.C. Chapter 1545. See

Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, paragraph two of the

syllabus.

{¶ 13} Therefore, the Campbell and Sebring ordinances are

unconstitutional and invalid. The auditor and treasurer consequently had a duty

under the Revised Code and the approved 1988 Park District tax to assess, collect,

and disburse to the board the applicable tax from property in the entire district,

including Campbell and Sebring.

{¶ 14} In this regard, Campbell and Sebring’s argument that they have no

duty to perform the requested acts is irrelevant. The court of appeals merely joined

them as respondents upon the request of the auditor and treasurer, so that they could

assert their claims that the auditor and treasurer had no duty to collect Park District

taxes on real estate in Campbell and Sebring because of their municipal ordinances

withdrawing them from the Park District.

{¶ 15} In addition, Campbell and Sebring erroneously rely on the affidavits

of their mayors concerning the intent of the General Assembly in its passage of

R.C. 1545.041 and the intent of the electorate in the passage of the challenged

municipal ordinances. The challenged affidavits were not based on the personal

knowledge of the affiants, State ex rel. Cassels v. Dayton City School Dist. Bd. of

Edn. (1994), 69 Ohio St.3d 217, 223-224, 631 N.E.2d 150, 155; Civ.R. 56(E), were

conclusory, Fryberger v. Lake Cable Recreation Assn. (1988), 40 Ohio St.3d 349,

352-353, 533 N.E.2d 738, 742, and did not raise a genuine issue of material fact

concerning the constitutionality of the ordinances. For example, the Campbell

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January Term, 1999

mayor did not specify that he had personal knowledge of the General Assembly’s

intent in enacting R.C. 1545.041, and the fact that he was a state representative at

least nine years before its enactment does not raise an inference of such personal

knowledge. Similarly, the Sebring mayor did not, and could not, state that she had

personal knowledge of the intent of each of the electors in voting for the ordinance.

{¶ 16} Having shown its clear legal right to the taxes and corresponding

clear legal duty of the auditor and treasurer to assess, collect, and disburse to the

board the taxes from the district property, the board had to establish the lack of an

adequate remedy in the ordinary course of law in order to be entitled to the writ.

R.C. 2731.05. Campbell and Sebring claim that declaratory judgment, rather than

mandamus, was the appropriate action to test the constitutionality of the municipal

ordinances. We have recognized, however, that the constitutionality of a statute or

ordinance may in certain circumstances be challenged by mandamus. State ex rel.

BSW Dev. Group v. Dayton (1998), 83 Ohio St.3d 338, 345, 699 N.E.2d 1271,

1277.

{¶ 17} Declaratory judgment would not be an adequate remedy here

because it is not sufficiently complete. In general, if declaratory judgment would

not be a complete remedy unless coupled with extraordinary ancillary relief in the

nature of a mandatory injunction, the availability of declaratory judgment does not

preclude a writ of mandamus. State ex rel. Arnett v. Winemiller (1997), 80 Ohio

St.3d 255, 259, 685 N.E.2d 1219, 1222; see, also, State ex rel. Huntington Ins.

Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 537, 653 N.E.2d 349, 355, citing

State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d 129, 11 OBR 426, 464

N.E.2d 525, paragraph two of the syllabus. Therefore, the board established that it

lacked an adequate legal remedy because it would still need a mandatory injunction

to compel the auditor and the treasurer not to abide by the challenged ordinances.

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{¶ 18} Based on the foregoing, the court of appeals correctly granted the

writ. The board established all of the prerequisites for the issuance of a writ of

mandamus. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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