Dick McGinn with petitions

Dick McGinn carries petitions to the Athens County Board of Elections in this file photo from May 2017.

A group proposing a charter form of government for Athens County has argued on appeal that a local court erred in upholding a rejection of the proposal for the November ballot.

The Athens County Bill of Rights Committee (ACBORC) filed a merit brief with the Fourth District Court of Appeals Tuesday, contending that the Athens County Board of Elections unconstitutionally rejected the proposal and that the Athens County Common Pleas Court improperly upheld that objection.

In July, the elections board rejected the charter as invalid by saying that a proposed executive council (comprised of county elected officials who aren’t county commissioners) does not meet Ohio Revised Code requirements for a county executive under an alternative form of government.

As with initiatives in the previous two years, this charter proposal doubles as an effort to keep oil and gas horizontal hydraulic fracturing (fracking) out of Athens County, through prohibiting the use of local water for fracking operations. It also would outlaw future fracking waste-injection wells, of which Athens County already has several in operation.

In many ways, that is the driving force behind the proposal, as the original version of the charter that was proposed and rejected for the ballot in 2015 did not seek to change county government at all. The charter was also proposed and rejected in 2016 due to allegedly insufficient detail regarding changes to county government. Both times it made it to and was rejected by the Ohio Supreme Court.

This summer, Athens County Common Pleas Judge George McCarthy sided with the county Board of Elections and upheld its latest rejection of the charter. The group filed an appeal of McCarthy’s decision with the Fourth District Court of Appeals on July 28.

The ACBORC also filed a protest of the elections board decision with Ohio Secretary of State Jon Husted. Earlier this month, Husted dismissed the protest without considering the merits, instead saying it was improperly filed.

Husted determined that Ohio law barred the petitioners from filing the protest with his office after they already had appealed the elections board’s decision to the Athens County Common Pleas Court.

In addition to seeking an appeal of the Common Pleas Court decision with the Fourth District appellate court, the group has filed a complaint in mandamus in the Ohio Supreme Court in opposition to Ohio Secretary of State Jon Husted’s rejection of the issue.

The Athens County Prosecutor’s Office, representing the Board of Elections, has indicated it may file for a stay in the Fourth District court case while the same matter is pending before the state Supreme Court.

In theory, the Ohio Supreme Court could decline to consider the complaint in mandamus because the same matter is currently before a lower court in this state. However, the Supreme Court is able to act on an expedited timeline for a decision before November ballots are printed. The appellate court process is likely to take much longer and not be concluded before this year’s election.

IN THE MERIT BRIEF filed with the appellate court, attorneys for the ACBORC including local lawyer Pat McGee and Toledo environmental lawyer Terry Lodge made three assignments of error.

The first was that the Common Pleas judge erred by refusing to hold that the Ohio Constitution provides a separate and independent means of creating a charter form of county government than Ohio Revised Code.

The group argued that the charter was proposed under the Ohio Constitution, Article X, Section 3, so Ohio Revised Code statute concerning alternative government and a county executive does not apply. They cited separate ballot requirements for proposals filed under the constitution and proposals filed under state statute. The brief called the county Board of Elections’ decision a blatant misapplication of state statute to the constitutional process under which the proposal was filed.

In its second assignment of error, the group argued that the elections board and Common Pleas Court erred in failing to recognize the constitutional right of local community self-government, which they said prevents elections boards and courts from disqualifying a proposed charter until the people have voted on it. State law allows county boards of election to make determinations limited to matters of process only, the group argued. 

The brief included an extended treatise delineating the history of American and Ohio self-governance, from the Declaration of Independence to the U.S. Constitution to the Ohio Constitution. It included references to case law, books and testimony from throughout American history. 

In recent years, Ohio courts haven’t been sympathetic to such sweeping arguments when it comes to oil and gas regulation, which state law reserves to the Ohio Department of Natural Resources.

By not allowing county residents to vote on the charter, the ACBORC brief argued, the elections board violated the rights of local government by majority, the right to local government that secures political and civil rights, and the right to alter local government that fails to accomplish these.

In the third assignment of error, the group argued that that authority given to the secretary of state and county elections boards to analyze initiative proposals for validity under House Bill 463 by the Ohio General Assembly in December 2016 is unconstitutional.

The group said that the court erred in upholding pre-election substantive review and veto powers used by the local elections board that they said unconstitutionally infringe on the people’s inherent right to legislate and have meaningful redress in the courts.

The brief argued that H.B.463 unconstitutionally infringes upon judicial power by giving executive-branch boards of elections responsibility to decide the constitutionality and other legality of proposed initiatives. Moreover, they said, the bill unlawfully altered the separation of powers.

Finally, the brief argued that H.B. 463 is unconstitutional because it was passed as part of a so-called Christmas tree bill covering a wide range of topics in violation of the Ohio Constitution’s “one-subject rule” for legislation.

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