The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Repeal the Lorain Cty. Permissive Sales Tax Commt. v. Lorain Cty. Bd. of Elections, Slip
Opinion No. 2017-Ohio-7648.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-7648
THE STATE EX REL. REPEAL THE LORAIN COUNTY PERMISSIVE SALES TAX
COMMITTEE ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Repeal the Lorain Cty. Permissive Sales Tax
Commt. v. Lorain Cty. Bd. of Elections, Slip Opinion No. 2017-Ohio-7648.]
Mandamus—Writ of mandamus sought to compel board of elections to certify an
initiative petition for election ballot—R.C. 5739.021 and 5739.022—R.C.
5739.021(A) prescribes the procedures for a referendum to prevent the
imposition of a nonemergency resolution levying or increasing a permissive
tax before the resolution is effective—R.C. 5739.022(A) prescribes the
procedures for repeal of emergency tax resolutions that have already gone
into effect and therefore are not subject to referendum—Writ denied.
(No. 2017-1181—Submitted September 8, 2017—Decided September 15, 2017.)
IN MANDAMUS.
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SUPREME COURT OF OHIO
KENNEDY, J.
{¶ 1} In this expedited election matter, relators, Repeal the Lorain County
Permissive Sales Tax Committee, Gerald W. Phillips, Curtis Weems, and Jean L.
Anderson (collectively, “the committee”), seek a writ of mandamus compelling
respondent, Lorain County Board of Elections, to certify an initiative petition for
the November ballot. The board of elections has filed a motion to strike one
paragraph from the affidavit submitted by Phillips in support of the petition. For
the reasons set forth herein, we deny the motion to strike and deny the petition for
a writ of mandamus.
Background
{¶ 2} On December 14, 2016, the Lorain County Board of Commissioners
approved Resolution No. 16-799, which increased the existing sales-tax rate by
one-quarter of one percent, effective April 1, 2017. It imposed a similar increase
on the county use tax for motor vehicles, watercraft, and outboard motors.
Resolution No. 16-799 was not passed as an emergency measure.
{¶ 3} In response, the committee circulated petitions captioned “Petition for
Repeal of County Permissive Tax.” The body of the petition stated:
We, the undersigned, electors of the County of Lorain, Ohio
respectfully petition that the resolution relative to the levying of an
increase in the county permissive sales tax and use tax of one-quarter
of one percent (1/4%) pursuant to R.C. 5739.021 and R.C. 5741.021
passed by the Board of Lorain County Commissioners on the 14th
day of December, 2016, be submitted to the electors of Lorain
County for repeal at the next general election.
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January Term, 2017
{¶ 4} The board of elections determined that the committee had submitted
a sufficient number of valid signatures to qualify for the ballot.1 The board also
concluded that the petition was valid as to its form and contained no legal defects.
However, on August 18, 2017, the board voted two to one not to place the petition
on the general-election ballot on the grounds that R.C. 5739.022 does not permit an
initiative petition to repeal a county permissive tax that was not passed or enacted
as an emergency measure.
Procedural history
{¶ 5} The parties filed briefs, evidence, and stipulations in accordance with
the schedule governing expedited election cases in S.Ct.Prac.R. 12.08. The court
also received an amicus brief in support of the committee’s position from Ohio
Citizens for Honesty, Integrity and Openness in Government Ltd.
The motion to strike
{¶ 6} As part of its evidentiary submission, the committee submitted an
affidavit from relator Phillips. Paragraph 35 of that affidavit reads:
On or about 12-21-16 Craig Snodgrass, Lorain County
Auditor, wrongfully and unlawfully refused to accept a certified
copy of the Referendum Petitions for Resolution No. 16-799, which
cause[d] a minimum of a week day delay in the circulation efforts.
On September 6, 2017, the board of elections filed a motion to strike this paragraph
as “patently and demonstratively false and scandalous.” The motion included
affidavits intended to prove that the committee had attempted to file the wrong
document but that the auditor’s office had accepted the improper filing anyway.
1
The committee needed 7,782 valid signatures to qualify for the ballot. The board certified 9,995
valid signatures.
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SUPREME COURT OF OHIO
{¶ 7} Civ.R. 12(F) permits a court to strike “any redundant, immaterial,
impertinent, or scandalous matter” in a pleading. The accusation in paragraph 35
that the auditor acted “wrongfully and unlawfully” is not impertinent or scandalous.
Every mandamus petition accuses a government official of unlawful conduct. The
worst that can be said about paragraph 35 is that it is immaterial; neither the
auditor’s alleged refusal to accept the petition for filing, nor the alleged delay in
circulating the petition for signatures, contributed to the ultimate rejection of the
petition by the board. Most pleadings probably contain information that one party
deems relevant, but the other party does not. We do not wish to encourage the
practice of filing Civ.R. 12(F) motions over every bit of irrelevant information.
{¶ 8} We deny the motion to strike.
The mandamus petition
The elements of mandamus
{¶ 9} To be entitled to a writ of mandamus, a relator must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide the requested relief, and (3) the
lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters
v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. The sole
issue presented by the parties concerns the first element: whether the committee has
a clear legal right to have its petition placed on the November ballot.
The law governing initiative petitions
to repeal county permissive sales taxes
{¶ 10} A board of county commissioners is authorized to impose a tax upon
retail sales by resolution. R.C. 5739.021(A). Counties may also impose storage,
use, or consumption taxes on motor vehicles, watercraft, and outboard motors titled
in the county. R.C. 5741.021(A).
{¶ 11} This case concerns R.C. 5739.022, which provides:
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January Term, 2017
(A) The question of repeal of either a county permissive
tax or an increase in the rate of a county permissive tax that was
adopted as an emergency measure pursuant to section 5739.021 or
5739.026 of the Revised Code may be initiated by filing with the
board of elections of the county not less than ninety days before the
general election in any year a petition requesting that an election be
held on the question. The question of repealing an increase in the
rate of the county permissive tax shall be submitted to the electors
as a separate question from the repeal of the tax in effect prior to the
increase in the rate.
According to the parties, the dispositive issue is the scope of the phrase “that was
adopted as an emergency measure” in the first sentence.
{¶ 12} The board of elections argues that the committee’s initiative petition
was improper because R.C. 5739.022(A) allows repeal of only those county
permissive taxes that are passed as emergency measures. The board reads the
phrase “that was adopted as an emergency measure” as modifying both “a county
permissive tax” and “an increase in the rate of a county permissive tax.” Therefore,
in the board’s view, the committee is attempting to repeal permissive taxes that
were not passed as emergency measures, which is not permitted under R.C.
5739.022(A).
{¶ 13} The committee takes a contrary view. It argues that the phrase “that
was adopted as an emergency measure” modifies only “an increase in the rate of a
county permissive tax.” Under this statutory interpretation, R.C. 5739.022(A)
permits an initiative petition to accomplish either of two things: (1) a repeal of a
permissive tax in total, whenever and however enacted or (2) a repeal of a tax
increase, but only if the tax increase was passed by emergency measure. Thus, the
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SUPREME COURT OF OHIO
committee concludes, it has launched a proper repeal attempt against the entire
permissive tax.
{¶ 14} This statutory dispute is a matter of first impression. When
construing the language of a statute, we begin with a familiar objective: a
determination of the intent of the General Assembly. Caldwell v. State, 115 Ohio
St. 458, 466, 154 N.E. 792 (1926). The intent of the General Assembly must be
determined primarily from the language of the statute itself. Stewart v. Trumbull
Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). When a
statute is unambiguous, we apply it as written. Portage Cty. Bd. of Commrs. v.
Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex
rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545,
660 N.E.2d 463 (1996).
{¶ 15} The parties dispute whether it was the intention of the General
Assembly in R.C. 5739.022(A) to permit an initiative petition on any permissive
tax or on only those permissive taxes enacted by an emergency measure. To answer
the question, however, the provision cannot be viewed in isolation. See D.A.B.E.,
Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773
N.E.2d 536, ¶ 19. Rather, it must be considered as part of a statutory scheme for
the levying and collecting of taxes. See R.C. 5739.02 et seq. Under the scheme,
when a board of county commissioners adopts a nonemergency resolution levying
or increasing a permissive tax, R.C. 5739.021(A) provides for the filing of a petition
for a referendum prior to the effective date of the resolution. See R.C. 305.31 to
305.41. R.C. 5739.022(A), in turn, prescribes the procedures for repeal of
emergency tax resolutions that have already gone into effect and thus aren’t subject
to referendum.
{¶ 16} As set forth above, we deny the motion to strike. The parties
stipulated that the county commissioners did not adopt the permissive tax on an
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January Term, 2017
emergency basis. Therefore, R.C. 5739.022(A) does not provide the clear legal
right to the relief sought. Therefore, we deny the writ of mandamus.
Writ denied.
O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ., concur.
O’CONNOR, C.J., concurs in judgment only, with an opinion.
O’NEILL, J., concurs in judgment only.
_________________
O’CONNOR, C.J., concurring in judgment only.
{¶ 17} I agree with the majority’s decisions to deny the motion to strike and
the writ of mandamus. But I write to explain why, in my opinion, the court has
overreached in its decision.
{¶ 18} The majority opinion concludes that R.C. 5739.021(A) concerns tax
resolutions that are not adopted as emergency measures while R.C. 5739.022(A)
concerns tax resolutions that are adopted as emergency measures. This is not an
issue the court needs to reach.
{¶ 19} Despite any efforts by relators, Repeal the Lorain County Permissive
Sales Tax Committee, Gerald W. Phillips, Curtis Weems, and Jean L. Anderson
(collectively, “the committee”), to save their initiative petition by claiming that it
seeks to repeal the entire tax, the petition speaks for itself. Specifically, it states
that “the undersigned * * * petition that the resolution relative to the levying of an
increase in the county permissive sales tax * * * be submitted * * * for repeal at the
next general election.” (Emphasis added.) And it is undisputed that the resolution
that the Lorain County Board of Commissioners approved was an increase in the
tax rate that was not adopted as an emergency measure. Therefore, this mandamus
petition concerns an increase in the rate of a county permissive tax that was not
adopted as an emergency measure.
{¶ 20} The question the parties put before us is whether the phrase “that was
adopted as an emergency measure” in R.C. 5739.022(A) modifies both “a county
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SUPREME COURT OF OHIO
permissive tax” and “an increase in the rate of a county permissive tax,” as
respondent, the Lorain County Board of Elections, claims or modifies only the
latter, as the committee claims. However, the initiative petition did not seek to
repeal “a county permissive tax,” “an increase in the rate of a county permissive tax
that was adopted as an emergency measure,” or a county permissive tax that was
adopted as an emergency measure. R.C. 5739.022(A), therefore, does not possibly
provide for an initiative for the repeal of the resolution at issue in this case under
the statutory interpretation offered by either party. Accordingly, the committee did
not establish a clear legal right to have the initiative petition certified.
{¶ 21} This court is supposed to reach only those issues necessary for
resolution of the claim at hand. State ex rel. White v. Kilbane Koch, 96 Ohio St.3d
395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18, citing State ex rel. Baldzicki v.
Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 238, 242, 736 N.E.2d 893 (2000),
and Egan v. Natl. Distillers & Chem. Corp., 25 Ohio St.3d 176, 495 N.E.2d 904
(1986), syllabus. The majority chooses to ignore that canon. The only necessary
matter to be determined today is whether the initiative petition would be governed
by R.C. 5739.022(A) under the committee’s interpretation of that statute. It would
not.
{¶ 22} Accordingly, I concur in judgment only.
_________________
Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.
Dennis P. Will, Lorain County Prosecuting Attorney, and Gerald A. Innes,
Assistant Prosecuting Attorney, for respondent.
Phillips & Co., L.P.A., and Gerald W. Phillips, in support of relators for
amicus curiae, Ohio Citizens for Honesty, Integrity and Openness in Government
Ltd.
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