Saturday, March 21, 1998
Statewide vote on tax disputed
Constitution forbids it, foe tells court

BY SANDY THEIS
Enquirer Columbus Bureau

COLUMBUS - Whether you get the chance to vote on a state sales tax increase on May 5 could depend on the definition of one word: ''authority.''

Conservative crusader David Zanotti asked the Ohio Supreme Court Friday to block the issue from the ballot, insisting the Ohio General Assembly used an improper interpretation of ''authority'' when it passed legislation to put the tax increase before voters.

The case hinges on Article II, Section 26, of the Ohio Constitution. The provision forbids the General Assembly from passing any laws ''except such as relates to public schools'' that won't take effect unless some ''other authority'' approves them.

Earlier this year, the General Assembly passed a law related to school funding that asks voters to pass a state sales tax hike. Lawmakers argue that voters constitute the ''authority'' cited in the constitution.

Ultimate authority

''The people of Ohio have long been - and continue to be - the ultimate political 'authority' in the state,'' Attorney General Betty Montgomery argues in court papers.

''Dictionary definitions support this self-evident point,'' she asserts. Legal dictionaries have long used the word in a way ''that is synonymous with power.''

Mr. Zanotti calls the state's arguments ''an intriguing and very appealing concept.''

But if the state's position is correct, why has no one in the 147-year history of the provision ever used it to submit an issue to the voters, he asked.

The Ohio Constitution sets forth detailed procedures for statewide initiatives and referendums. The procedures list everything from the number of signatures needed to qualify for the ballot to the procedures for determining the ballot language.

Article II, Section 26, however, contains no procedures that spell out how to submit legislation for voter approval because it never was intended to be used in such a fashion, Mr. Zanotti said. HD:147-year-old issue

If the state wins, he envisions a scenario whereby local governments can pass education-related laws that differ from the state law. ''Are we going to, for example, face a situation where the border counties choose, through local votes, to refuse to participate in this new tax increase,'' he asked during a news conference Friday. ''Since the ultimate authority resides with the people, and they have voted, can they refuse to participate in this matter?''

The provision in question is the product of the Ohio Constitutional Convention of 1850-1851, and today's constitutional debate mirrors arguments made more than a century ago.

Some delegates advocated removing the now-disputed section. Charles Reemelin, a delegate from Hamilton County, helped convince his fellow delegates to leave it alone.

The provision is needed, he argued, ''to prescribe that the law-making power shall remain with the Legislature, in order that the citizens may know exactly where to look for it'' and who to blame if they are dissatisfied.

His comments, along with those of other delegates, are included in the 38-page brief filed by Mr. Zanotti.

'A mere loophole'

The brief argues that the state's interpretation of the provision would undermine the delegates' main reason for adding it in the first place.

The purpose of the provision ''was to address a practice that had become all too common whereby the General Assembly would enact laws, but only to take effect if approved by local authorities,'' Mr. Zanotti argues in the brief.

The legislature, for example, would let county or city voters decide locally whether to invest in costly things such as railroads or court houses.

Hamilton County's Mr. Reemelincalled ''submitting a proposition to the people . . . a mere loophole for members of the General Assembly to shove off responsibility.'' He advocated a uniform system of laws.

Mr. Zanotti noted that the legislature has the authority to pass a tax increase without a vote of the people. ''This is about political cover,'' he said.

Mr. Zanotti's position places him at odds with some of his former allies and his fellow Republicans, including Gov. George Voinovich. Mr. Voinovich supports the tax hike and argues it is needed to help underwrite the cost of spending increases mandated in an education budget bill.

The ballot issue calls for raising the state sales tax from 5 cents on the dollar to 6 cents. It would generate an additional $1.1 billion annually, with half the proceeds going to public schools and half to fund property tax cuts for homeowners.

Overhaul ordered

The Ohio Supreme Court prompted an overhaul of the school-funding formula last year, when it ruled that the current method of funding Ohio's 611 public school districts is unfair and unconstitutional. Since then, lawmakers have adopted a series of changes, including boosting money for schools, school buildings and classroom materials. Still, the more than 500 schools that filed the original lawsuit continue to maintain that the state's response falls short because it does not narrow the gap between the richest and poorest schools, does not adequately fund some of the poorest schools and does not constitute the ''complete and systemic overhaul'' called for by the high court.

Hearings after vote

Perry County Common Pleas Judge Linton Lewis is to determine whether the state has met the Supreme Court's mandate. Judge Lewis had indicated he will hold hearings on the subject but will not do so until after the May 5 vote. His ruling can be directly appealed to the Ohio Supreme Court.

The state supreme court is expected to rule on Mr. Zanotti's lawsuit next week.

''God knows where it's going to lead,'' Mr. Zanotti said, ''all in the name of a half-billion tax that was designed for political cover and that the . . . plaintiffs have already told us won't solve the problem anyhow.''