Maurice Thompson submitted a complaint to the Ohio Supreme Court on September 6 asking the court to compel the Franklin County Board of Elections to include the Taxpayers for Westerville Schools (TFWS) issue on the November ballot. TFWS successfully petitioned for a local issue allowing voters the option of reducing a 2009 property tax hike, but the ballot measure was removed at a September 4 elections board hearing.

Thompson, the executive director of the 1851 Center for Constitutional Law, has provided legal counsel to TFWS during the group’s campaign to cut Westerville property taxes by  referendum. In his complaint to the Supreme Court, Thompson argued that the ballot measure – Issue 52 – was approved by the elections board in accordance with state law and must be restored before ballots are printed later this month.

The Franklin County Board of Elections agreed to remove the TFWS issue from the ballot following a complaint from Gene Hollins, a local attorney. Hollins’s complaint, supported by a memorandum from the board of the Westerville City School District, hinged on the rationale that the 2009 levy was a replacement levy and thus could not be reduced by voters.

“Even when a replacement levy decreases the originally voted millage of the levy (or levies) that it replaces, the replacement levy may still increase the rate of taxation upon property owners,” Thompson wrote in the Supreme Court complaint.

“For instance, if a levy originally authorizes a school district to levy 10 mills, but state law reduces this tax rate to 2.5 mills, a replacement levy seeking five mills actually doubles the rate of taxation upon property owners, rather than cutting it in half.”

Thompson explained that the November 2009 levy targeted for reduction by TFWS replaced two levies totaling 3.43 mills with a single 11.4 mill levy, amounting to a 7.97 mill property tax increase.

Summarizing the September 4 Franklin County Board of Elections hearing on the complaint from Hollins, Thompson wrote, “No member of the Board asked any questions to either of the attorneys, or otherwise asked any questions.”

“Counsel for Mr. Hollins did not attach any evidence to his brief or present any evidence at the hearing, other than the ballot language from the November 2009 levy.”

Doug Preisse, chairman of both the Franklin County Board of Elections and the Franklin County Republican Party, motioned to accept Hollins’s protest of the TFWS issue and remove Issue 52 from the ballot.

Thompson wrote, “No findings of fact or law were made before or after Chairman Preisse’s motion, but the two Democratic appointees instantly and immediately voted in favor of the motion, with member Manifold exclaiming ‘that was a tough one,’ and Chairman Preisse stating ‘this was hard and there’s great articulated merits on both sides as this non-lawyer sees it.’”

According to Thompson, Hollins “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,” and this misunderstanding was accepted by the elections board with no reference to legal precedent.

The TFWS complaint asks that the Supreme Court, by way of a writ of mandamus, compel the Franklin County Board of elections to include Issue 52 on the ballot.

In addition to the Supreme Court complaint, Thompson also filed a motion to expedite the decision. Ballots for the general election must be printed by September 22, so a final determination about the TFWS issue must be made by that date.