The Ohio Supreme Court today denied arequest by the Delaware Joint Vocational School District Board of Education to compel Ohio Tax Commissioner Joe Testa to calculate tax rates on a 2015 multicounty renewal levy.

The court explained that the Delaware County Board of Elections did not submit the levy request to the boards of elections in Franklin, Marion, Morrow, and Union counties, and it failed to certify the election results from each of those neighboring counties. Accordingly, the tax commissioner had no information to determine that the tax had been authorized to be levied, and therefore had no clear legal duty to calculate the tax rates.

The Supreme Court voted 4-3 to deny a writ of mandamus ordering the tax commissioner to calculate tax rates in the school district so that the renewed levy could be included on tax bills issued to property owners in 2017. In a per curiam opinion, the Court held that the tax commissioner could not be compelled to calculate tax rates when the Delaware County Board of Elections had not certified the election results from all five counties in the multicounty school district.

The majority explained: “Because no proper certification of the multicounty election has been presented to the tax commissioner demonstrating that the tax is ‘authorized to be levied,’ the tax commissioner does not have a clear legal duty to calculate tax rates for this levy.”

In a dissenting opinion, Chief Justice Maureen O’Connor noted that 98.4 percent of the district is in Delaware County and the renewal passed by more than 10,000 votes. Even if all 1,026 registered voters in Franklin, Marion, Morrow, and Union counties that are in the district voted against the levy, it still would have passed. She also disputed that the board of elections had to provide the form Testa required.

Elections Board Oversight
The Delaware Joint Vocational School District provides career and technical education for students who live in Delaware County and portions of Franklin, Marion, Morrow, and Union counties. Because the 10-year, 1.7-mill levy funding the school district was set to expire on Dec. 31, 2016, the school board passed a resolution in July 2015 to submit a renewal levy to voters at the November 2015 general election. The school board certified the resolution to the Delaware County Board of Elections, which was required to notify the boards of elections of the other four counties so that the levy could be placed on the ballot in each county.

However, the Delaware County Board of Elections failed to notify the boards of elections in Franklin, Marion, Morrow, and Union counties, and also erroneously reported to the Ohio Secretary of State that the levy did not involve any “overlapping counties.” As a result, the renewal levy did not appear on the ballots of electors residing within the district but outside of Delaware County.

The Delaware County Board of Elections purported to certify the levy as passing using Form 125, a form that reported only the levy votes in Delaware County, rather than using the form prescribed by the Ohio Secretary of State to certify the results of a multicounty election, Form 5-U, which would have revealed that the levy was invalid because it had not been submitted to voters in the surrounding counties as required by law.

After the Delaware County auditor delivered the abstract of tax rates to the tax commissioner in December 2016 so that he could calculate tax rates for the school district, the tax commissioner directed the auditor to submit Form 5-U showing that the levy had passed. The Delaware County auditor then discovered that the Delaware County Board of Elections had not certified the results of the levy using that form. As a result, the tax commissioner excluded the levy on the list of tax rates certified for collection in the school district, and it did not appear on tax bills sent to taxpayers in 2016.

The school board asked the Court for a writ of mandamus compelling the tax commissioner to calculate tax rates for the levy so that it could be included in corrected tax bills sent in 2017. It maintained that the tax commissioner has no authority to question the validity of an election that has been certified by the board of elections and that the certificate of election issued by the Delaware County Board of Elections was “conclusive” of the levy’s passage. And, it argued, because the tax commissioner has a mandatory ministerial duty to calculate tax rates, it has a clear legal right to the performance of that duty.

Court Assesses Tax Commissioner’s Duty
The majority opinion stated that Ohio law requires county boards of elections to certify election results using the forms prescribed by the secretary of state, and the secretary of state had prescribed Form 5-U for use in certifying the results of a multicounty election. The Delaware County Board of Elections, however, failed to use Form 5-U to report the results of the levy. The certificate of election it issued reported results from only one county in the multicounty school district and failed to list the final vote totals of each county in the district. The majority concluded the results of the election were never properly certified to the tax commissioner as required by law.

R.C. 319.301(D)(1) directs the tax commissioner to calculate tax rates for each tax that is “authorized to be levied.” However, the levy was not submitted to voters in Franklin, Marion, Morrow, and Union counties, and the results of the levy in those counties were never certified.

“Absent certification of the multicounty election, the tax commissioner has no legal documentation demonstrating that the tax has been ‘authorized to be levied,’” the opinion stated.

And because the tax commissioner could not determine that the tax had been authorized to be levied, the statutory obligation to calculate tax rates in multicounty districts never arose. For these reasons, the Court stated, the school district has no clear legal right to relief and the tax commissioner has no clear legal duty to act, and it denied the requested writ of mandamus.

Justices Terrence O’Donnell, Sharon L. Kennedy, William M. O’Neill and R. Patrick DeWine joined the opinion.

Dissent Argues Form Not Required
Chief Justice O’Connor disputes the majority’s assessment that a Form 5-U must be supplied to the tax commissioner. She maintained the county had the option of using Form 125, and with the certified election results in hand, Testa had the duty to calculate the rates.

She noted that the secretary of state’s instructions to boards indicate that Form 5-U is required to provide the secretary’s office of the results, but nothing in the instruction handbooks or the form itself indicate it is required to be used to notify the tax commissioner.

“For property tax levies, whether for a single-county or multicounty district, the appropriate document for certifying results to the tax commissioner is Form 125,” she wrote.

She noted the bottom of Form 125 instructs that it is to be delivered to Ohio Department of Taxation, and Delaware County did that. With the information provided, the chief justice wrote there is no law or rule in place that gives the tax commissioner authority to demand additional information. Because the tax commissioner has a clear legal duty under R.C. 319.301(D) to conduct the ministerial functions of his office and he has refused to do so, the chief justice noted that a writ of mandamus should be issued.

Justices Judith L. French and Patrick F. Fischer joined the chief justice’s dissent.

2017-0079. Stat ex rel. Delaware Joint Vocational School Dist. Bd. of Edn. V. Testa, Slip Opinion No. 2017-Ohio-796.

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