Supreme Court Rules Against Westerville Tax Cut Issue
The Ohio Supreme Court has denied Taxpayers For Westerville Schools (TFWS) a requested writ of mandamus that would have restored the citizen group’s tax-reduction measure to the November ballot. In a September 20 per curiam decision – not written by a justice, and assented to by the court without further comment – the Supreme Court sided with the Franklin County Board of Elections, which removed Issue 52 from the ballot at a September 4 hearing.
In a statement posted to the group’s website, TFWS wrote, “Taxpayers for Westerville Schools would like to thank all 5,126 people who signed the petition to place this issue on the ballot. It was our decision to try to reduce the 2009 levy and there was no way to know that the reason used to stop the issue would have ever been a valid argument.”
According to the court’s slip opinion, taxpayer advocacy group Coalition Opposed to Additional Spending and Taxation (COAST) submitted a brief in support of TFWS. The Ohio School Boards Association, Ohio Association of School Business Officials, and Buckeye Association of School Administrators all submitted briefs in support of Westerville City School District and Westerville attorney Gene Hollins.
TFWS was represented by Maurice Thompson of the 1851 Center for Constitutional Law, who provided counsel to the group throughout the process of finding a statutory method for reducing local taxes and petitioning to get an issue on Westerville ballots.
Thompson explained in his Supreme Court complaint that Hollins’s August 22 complaint to the elections board “mistakenly compared the rate of the originally voted but no longer in effect millage of the 1970s levies (11.4 mills), rather than the then-current tax rate imposed by those levies (3.43 mills) to the 11.4 mill replacement levy.”
However, Hollins and the school district convinced the Franklin County Board of Elections that the TFWS ballot measure could not be included on the ballot because it sought to reduce the rate of a replacement levy. The 2009 replacement levy targeted by TFWS set millage equal to the amount approved by voters in 1972 and 1979, but the effective rate of those levies had decreased greatly by 2009.
The court concluded that, in order to comply with the statute cited by TFWS, “the phrase ‘rate of levy’ in this context refers to the amount of millage approved by the voters regardless of whether the effective or actual amount of taxes collected or paid has been reduced by other provisions.”
In other words, the court found TFWS’s ballot measure to reduce a 2009 tax hike illegal because the approved millage was equal to the millage approved in two levies from the 1970s. The Supreme Court applied the voted-on millage from decades earlier – instead of the actual tax rate at the time of the 2009 “replacement” levy – as the metric the 2009 levy must be measured against.
The September 20 decision by the court, on which six of seven justices are Republicans, effectively guts the ability of taxpayers to reduce local tax increases resulting from replacement levies.
A statement from Thompson in response to the Ohio Supreme Court ruling follows.
Unfortunately, the Courts decision does not address our argument that the statute only requires that the levy have approved the increased rate, irrespective of when it was initially approved.
By the Courts standard, there is no levy in Westerville, and no levy in most Ohio school districts, that can be reduced or repealed: the replacement levy tactic has been used extensively. The Court has simply shredded the tax reduction statute.
And it hasnt done a very good job of explaining why it has done so. The decision renders a new and previously unimaginable interpretation of the statute, limiting it to application only when voters have approved an increase in the prior voter-approved rate of levy, even though the statute only requires approval of an increased rate of levy.
As to the meaning of that phrase, the Court does not define it, but says rate of levy in this context refers to the amount of millage approved by voters regardless of whether the effective or actual amount of taxes collected or paid had been reduced by other provision. In doing so, the Court ignored its past precedent, where it explicitly designated a levy as the taxes actually imposed or collected.
We appreciate that fact that the Court was placed in the position of addressing a novel legal question of first impression – - whether a rate of levy is the originally voted but no longer in effect rate, or the rate that the taxpayers actually pay. Ultimately, however, Im afraid we were just up against too many big law firms and lobbyists, in Bricker&Eckler, Ulmer&Berne, and the Ohio School Boards Assocation, hired with the taxpayers own money, who have bundled too much in campaign contributions to the Justices over the years.
Its a bitter pill to swallow, but well have to work on other methods of reducing property taxes in Ohio. And the solution will likely have to be statewide – - local taxpayers just dont have the resources to get the attention of the Ohio Supreme Court, while beating back use of their own money against them.