R.C. 718.04(C)(2) “Copy of the Ordinance” Means the Proposed Ordinance Submitted to Voters—City Council Need Not Enact It First

1. Introduction

This case concerns the procedural mechanics for placing a municipal-income-tax question on the ballot under R.C. 718.04(C)(2) when the tax rate exceeds 1%. The relator, the City of New Carlisle, sought ballot placement for a continuation of a 0.5% income-tax increase (from 1% to 1.5%) dedicated to police expenses. The respondent, the Clark County Board of Elections, refused ballot placement on the theory that the city council first had to “pass” (i.e., enact) the ordinance authorizing the excess tax before submitting it to the board.

The central issue was interpretive and narrow but consequential: what does R.C. 718.04(C)(2) mean by requiring a municipality to file “a copy of the ordinance” with its election resolution at least 90 days before the election? Must that ordinance already be enacted by the municipal legislative authority, or can it be the proposed ordinance that will be presented to voters for passage?

2. Summary of the Opinion

The Supreme Court of Ohio (per curiam) dismissed the case as to the board director, Jason Baker, because the parties agreed he had no clear legal duty independent of the board’s direction. As to the board itself, the court granted a writ of mandamus ordering it to place New Carlisle’s income-tax levy on the May 6, 2025 ballot.

The court held that the board’s interpretation of R.C. 718.04(C)(2) was incorrect: the “copy of the ordinance” to be filed is the ordinance to be submitted to voters for approval, not an ordinance already enacted by city council. Because a municipality cannot levy an income tax in excess of 1% without voter approval, the board’s reading would force the city to “pass” an ineffectual ordinance—an outcome inconsistent with the statute’s structure and purpose.

3. Analysis

3.1 Precedents Cited

Although the merits turned on statutory interpretation, the court situated its decision within established mandamus standards and interpretive methodology, relying on several prior decisions.

• Mandamus elements: The court reiterated the three-part test from State ex rel. White v. Franklin Cty. Bd. of Elections, 2020-Ohio-524, ¶ 6 (clear legal right, clear legal duty, and no adequate remedy in the ordinary course of law). This framed New Carlisle’s burden and confirmed that mandamus is the proper vehicle for compelling ballot placement when legal prerequisites are met.
• Adequate-remedy timing in election cases: The court relied on State ex rel. Clark v. Twinsburg, 2022-Ohio-3089, ¶ 16, to conclude the city lacked an adequate remedy because the election was less than two months away. This is a recurring election-law principle: compressed timelines often make ordinary remedies impracticable.
• Standard of review for boards of elections: The court cited State ex rel. Mann v. Delaware Cty. Bd. of Elections, 2015-Ohio-718, ¶ 13, for the proposition that relief depends on showing fraud/corruption, abuse of discretion, or clear disregard of applicable law. With fraud/corruption not alleged, the court focused on whether the board clearly disregarded R.C. 718.04(C)(2).
• Plain-language statutory interpretation: For interpretive method, the court cited Total Renal Care, Inc. v. Harris, 2024-Ohio-5685, ¶ 13, emphasizing analysis begins with the statute’s plain language. It also cited State ex rel. Russell v. Thornton, 2006-Ohio-5858, ¶ 11, for reading words “in context” consistent with grammar and common usage.
• “Four corners” / whole-text canon: The court relied on State v. Wilson, 1997-Ohio-35, ¶ 9, warning against isolating a sentence from its context, and quoted K Mart Corp. v. Cartier, 486 U.S. 281, 291 (1988), to reinforce reading the statutory text and design as a whole.
• No deference to Secretary of State’s legal interpretation: The court cited State ex rel. Hildreth v. LaRose, 2023-Ohio-3667, ¶ 22, which (citing TWISM Ents., L.L.C. v. State Bd. of Registration for Professional Engineers & Surveyors, 2022-Ohio-4677, ¶ 3) states the court is not required to defer to executive interpretations of election law; it also noted it has declined to follow the Secretary’s interpretation when erroneous (see Hildreth at ¶ 22-23). This reduced the persuasive force of the Ohio Ballot Questions and Issues Handbook language the board invoked.

Notably, none of the cited precedents dictated the outcome on the meaning of “copy of the ordinance.” Instead, they supplied (i) the procedural framework for expedited election mandamus, (ii) the standard by which a board’s refusal may be overturned, and (iii) the interpretive tools used to resolve the statutory phrase at issue.

3.2 Legal Reasoning

The court’s reasoning proceeds in a tight sequence grounded in text and statutory structure:

1. The statute makes voter approval a prerequisite to levying an excess tax. The first sentence of R.C. 718.04(C)(2) provides that “no municipal corporation shall levy” an income tax over 1% without majority approval by municipal electors at a general, primary, or special election. This establishes the ordinance’s dependence on voter action.
2. “The ordinance” is used consistently across consecutive sentences to describe what goes on the ballot. The statute requires filing “a copy of the ordinance” and then prescribes ballot language asking: “Shall the Ordinance … be passed?” The court read the consecutive use of “the ordinance” as referring to the same object: the ordinance presented to voters.
3. The board’s reading would force enactment of an ineffectual ordinance. The court used ordinary meaning—“pass” meaning “enact”—supported by Black’s Law Dictionary. If the city council had to “pass” the ordinance before submission, it would be enacting a measure that cannot take effect without voter approval. The court found this internally inconsistent with the statutory scheme.
4. Analogies to referendum-style approval do not fit. The board’s reliance on Article XVIII, Section 5 (public utility ordinances and referendum) failed because those ordinances have legal force unless a referendum petition suspends them. By contrast, under R.C. 718.04(C)(2), the ordinance cannot become effective unless voters approve it in the first instance.
5. A contrasting statute shows the General Assembly knows how to require council enactment first. The court found that R.C. 715.84(E) explicitly provides that contracting parties may “enact an ordinance approving the contract” and then submit it for voter approval. The presence of explicit “enact … then submit” language there, and its absence in R.C. 718.04(C)(2), undercut the board’s attempt to read a similar two-step process into the tax statute.
6. The absence of the words “proposed ordinance” is immaterial given context. The board argued that because the General Assembly used “proposed ordinance” elsewhere (e.g., R.C. 705.15, R.C. 743.45, and R.C. 5709.45(G)(1)), “a copy of the ordinance” must mean an enacted ordinance. The court rejected the inference: those statutes address procedural drafting or ordinances a council may enact without prior voter approval—unlike an excess-income-tax ordinance that, by statutory design, is necessarily “proposed” until approved by electors.
7. Administrative guidance did not trump the statute’s meaning. The board relied on the Secretary of State’s Ohio Ballot Questions and Issues Handbook statement that the legislative authority “must pass” an ordinance authorizing the income tax. The court refused to treat the handbook as persuasive where it conflicted with the statute’s correct reading, consistent with State ex rel. Hildreth v. LaRose.

On these grounds, the court concluded the board “clearly disregarded applicable law” by rejecting New Carlisle’s submission, which consisted of (1) the election-directing resolution and (2) a copy of the ordinance to be submitted to voters.

3.3 Impact

The decision establishes a concrete operational rule for Ohio election administration under R.C. 718.04(C)(2):

• Boards of elections must accept ballot requests supported by a proposed excess-income-tax ordinance. A municipality satisfies the “copy of the ordinance” requirement by providing the ordinance text that will appear for voter passage, even if the municipal legislative authority has not enacted it.
• Municipal legislative drafting practice is clarified. Municipalities can proceed by adopting a resolution directing the election and attaching/incorporating the ordinance text as the measure to be voted upon, without risking ballot denial because the ordinance has not received council passage.
• Administrative guidance may need revision. Because the court expressly rejected the Secretary of State handbook’s “must pass an ordinance” phrasing as a “flawed interpretation,” local election officials who relied on that language have been put on notice that it is not controlling and, on this point, incorrect.
• Litigation risk shifts toward boards that impose extra-statutory prerequisites. The “clear disregard” finding signals that boards cannot add procedural hurdles not found in the statute, especially in expedited election contexts where denial effectively forecloses ballot access.

4. Complex Concepts Simplified

• Mandamus: A court order compelling a public official or body to perform a legal duty. Here, the city sought an order requiring the board to put the tax issue on the ballot.
• Excess municipal income tax (over 1%): Under R.C. 718.04(C)(2), a municipality cannot levy income tax above 1% unless a majority of voters approve the “excess.”
• “Pass” vs. “approve”: The board argued both council and voters can “pass” an ordinance. The court grounded “pass” in its enactment meaning, and emphasized the statutory structure: the ordinance is placed on the ballot so voters decide whether it will be “passed.”
• Plain meaning / whole-text reading: The court read “copy of the ordinance” in context with the ballot-language sentence (“Shall the Ordinance … be passed?”) and with the statute’s prerequisite of voter approval, rather than isolating the phrase.
• Referendum analogy (why it failed): A referendum typically suspends an already-enacted law pending voter approval. But an excess-income-tax ordinance cannot be effective at all until voters approve it—so treating it like a referendum statute misstates the legal sequence.

5. Conclusion

State ex rel. New Carlisle v. Clark Cty. Bd. of Elections resolves a practical but pivotal ballot-access question under R.C. 718.04(C)(2): the required “copy of the ordinance” is the ordinance text proposed for voter passage, not an ordinance already enacted by the municipal legislative authority. By granting mandamus, the Supreme Court of Ohio reinforced a text-and-structure approach to election statutes, curtailed boards’ ability to impose extra-statutory prerequisites, and clarified that administrative handbook guidance cannot override the statute’s correct meaning.