Lawrence S. Huffman: Know the law

By Lawrence S. Huffman - Contributing Columnist

In the late 1970s, most of the counties in Ohio were in desperate need for new sources of revenue. The legislature, dodging the political heat of any new statewide taxes, passed a law permitting counties to enact local taxes, including an additional 2 percent to be added to the sales tax in the county. Dodging the political heat, they also provided that any resolution imposing the additional sales tax was subject to a referendum and providing the procedure for the presentation of the issue to the voters for approval or rejection. The Commissioners passed a resolution under the authority of this statute imposing a half percent local add-on sales tax.

At that time, there was a small group of the opposing political party that opposed anything the county Commissioners did, including the imposition of 2 percent county sales tax which they dubbed a “piggy back” tax. They formed a committee of themselves to referend the resolution, held news conferences, and excoriated the Commissioners. Following the statute as they understood it, they obtained a certified copy of the tax resolution, attached it to their petition, obtained the appropriate number of signatures, and submitted them to the County Auditor. The statute required the Auditor to examine the petition to make sure it was in the correct legal form and send it on to the Board of Elections for a vote.

There was great local reaction. No pro-tax voices were heard, but those wanting the repeal were strident, particularly the retail interests who contended that Allen County people would go to the adjoining counties to shop because everything would be 2 percent cheaper. A downtown department store even announced that they would not collect the tax. The Commissioners had little to say, figuring that public sentiment was so strong there was nothing that they could do or say that would make any difference.

The County Auditor, who knew nothing about referendum petitions, called upon me as prosecuting attorney for advice as to what to do. After several weeks of “reviewing” the referendum petition, I composed a letter on his stationery, had him sign it, and delivered it to the chairman of the referendum committee announcing that he would not certify the petition on the advice of the prosecuting attorney. This caused a furor and the committee immediately filed a mandamus action asking that the Common Pleas Court issue an order to the County Auditor to certify the referendum petitions to the Board of Elections. Unfortunately, by that time, John H. Davison had died and had been replaced by a Judge whose political views and legal acumen was quite consistent with that of the referendum petitioners. He held a brief hearing on the mandamus petition and issued an order in which he complimented the referendum petitioners on their admirable use of the democratic process and himself on announcing his decision on May 1, Law Day, USA, and he ordered the Auditor to certify the referendum petitions to the Board of Elections to be voted on. To say the least, the Commissioners were distraught, both for the financial prospects of the county, and their own political future.

The referendum committee was ecstatic, complimenting the judge, predicting a landslide victory, berating me for my poor legal advice, and in general, just having a good old time. I met with the Commissioners several days later and told them all was not lost and that I would appeal the mandamus order and get it reversed in the Court of Appeals and there would be no referendum election.

I was so sure it would be reversed because I had come up the hard way as a prosecuting attorney working with a meticulous, careful, lawyer and judge who taught me that words mean what they plainly say. I had read the statute authorizing the referendum procedure and knew that it required the petitioners to file a verified copy of the Commissioners’ resolution with the County Auditor, not a certified copy. What’s the difference? Well, Judge Davison would have known off the top of his head. Verified means supported by an affidavit as to the truth of the matters set forth; sworn to. A certified copy means only that the board’s clerk says, not under oath, that it is a correct copy. Besides, I knew that the Supreme Court of Ohio had ruled on the exact same issue in a Richland County case. They had ruled that if the copy attached to the petitions was not verified, the Auditor had no duty to certify the petition to the Board of Elections. Relying on that case, the Court of Appeals reversed the ruling of the local Judge. We win, you lose!

The tax went into immediate effect with great benefit to the county. In 1970, the first full year, the county collected just over $1 million from the 2 percent “piggy back” tax. In 2013, the county collected $15 million and the retail trade has flourished ever since. If the referendum petitioners had hired a lawyer, they probably would have gotten it done right, but they didn’t and as I told you before, he who represents himself, has a fool for a client.

Moral of the Story: Certified is not verified.

By Lawrence S. Huffman

Contributing Columnist

Post navigation