Litigation

Ohio Supreme Court Denies Residents’ Writ; Fracking Ballot Initiatives Fail

COLUMBUS, Ohio — (Mealey’s) A divided Ohio Supreme Court on Sept. 16 denied a writ of mandamus sought by residents who wanted to compel the Ohio secretary of State to reverse his decision and place on the November ballots for three counties charter measures that would allow voters to pass initiatives banning hydraulic fracturing (State of Ohio ex rel. Renee Walker, et al. v. Jon Husted, Secretary of State of Ohio, No. 2015-1371, Ohio Sup.). 

(Opinion available.  Document #94-151013-007Z.

Initiative 

A group of residents led by Renee Walker contends that their claims arise from a denial of their rights by Ohio Secretary of State Jon Husted, which occurred when he “refused to perform his nondiscretionary legal duty to overrule improper and legally-unsupported protests against the substance of three substantially similar proposed county charter petitions that had been certified to the ballots of Fulton, Medina and Athens counties for the Nov. 3, 2015 general election.” 

The other plaintiffs are John P. Ragan, Elizabeth Athaide-Victor, Katharine S. Jones, Lynn Kemp, Douglas S. Arbuckle, Austin Babrow, John Howell, Richard McGinn and Sally Jo Wiley. 

The plaintiffs maintain that citizens groups formed in all three counties for the purpose of gathering elector signatures to a formal petition to propose the transition of the government of those counties.  Specifically, the citizens seek a charter form of government with governing mechanisms authorized under the Ohio Constitution and the Ohio Revised Code (ORC). 

Ballot Protest 

On Aug. 3, residents in each of the three counties filed ballot protests with the Secretary of State's Office. On Aug. 13, 2015, Husted issued a seven-page decision of all ballot protests in which he said the petitions were “invalidated.” 

Husted sustained the protests and directed the boards of election in those three counties to remove the duly-certified charter proposals from the public vote, the plaintiffs argue.  Specifically, Husted ruled that the petitions “must be invalidated on the basis that the petitions fail to provide for an alternate form of government consistent with clear statutory and constitutional requirements, and that state law preempts any authority to regulate ‘fracking’ by political subdivisions of the state, including charter counties.” 

The plaintiffs filed the complaint as an expedited matter with the Ohio Supreme Court. 

ORC 

The majority ruled that ORC 731.28 requires city auditors and village clerks to “certif[y] the sufficiency and validity” of initiative petitions.  Those municipal officials have limited discretionary authority concerning matters of form, but not matters of substance. 

The secretary of State’s statutory authority to inquire into a charter petition's “validity” is at least as broad as that of the boards of elections, “a point underscored by the fact that” ORC 307.95(C) expressly permits the secretary to “conduct hearings,” the Supreme Court said. 

Furthermore, the majority ruled that because a referendum on an administrative matter is “a legal nullity,” boards of elections have not only discretion but also “an affirmative duty, to keep such items off the ballot.  It necessarily follows that the boards have discretion to determine which actions are administrative and which are legislative.” 

Constitutionality

But this authority to determine whether a ballot measure falls within the scope of the constitutional power of referendum (or initiative) does not permit election officials to sit as arbiters of the legality or constitutionality of a ballot measure’s substantive terms, the majority added. 

The majority ruled that it was within Husted’s discretion to determine that the proposed charters were invalid because “they did not set forth the form of government, which is the sine qua non of a valid charter initiative, and to invalidate the three petitions on that basis.” 

The majority added that the relators failed to submit affidavits that comply with Supreme Court Practice Rule 12.02(B)(2) and that those defective affidavits served “as an alternate basis” for the majority’s decision. 

Justice William M. O’Neill dissented, but did not author a dissenting opinion. 

The plaintiffs are represented by Charles Kinsman of Cincinnati and Terry Lodge of Toledo, Ohio.  Husted is represented by Richard DeWine of Columbus. 

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