People protest outside charter appeal hearing

A group of protesters holds signs and chants “Let Us Vote” outside the Athens County Courthouse on a rainy Thursday morning. A hearing was held later in the morning on the Athens County Bill of Rights Committee’s appeal of a judge’s rejection of its anti-fracking county charter ballot measure last summer.

The 4th District Court of Appeals heard brief arguments Thursday morning in a local group’s appeal of the Athens County Board of Elections decision last July rejecting an anti-fracking county charter ballot proposal submitted by the group.

While supporters of the group, the Athens County Bill of Rights Committee (ACBORC), rallied in protest in the rain outside the Athens County Courthouse, chanting “Let Us Vote,” the three-judge appellate panel heard brief arguments inside the courthouse from each side in the case. A decision in the appeal case is expected no sooner than 30 days and could take several months.

Athens County Prosecutor Keller Blackburn, whose office is representing the county Board of Elections in the appeal case, said attorneys for both sides Thursday morning mainly touched on points already included in their legal filings in the appeal.

The party appealing the case, described as “a committee of petitioners for the county charter proposal,” on July 28, 2017, appealed Athens County Common Pleas Judge George McCarthy’s decision to uphold the Board of Elections’ July 10 decision to not place on the November 2017 ballot the Athens County Bill of Rights Committee’s proposed county charter.

Last July, the local Board of Elections rejected the charter as invalid by stating, among other things, 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.

Judge McCarthy sided with the Board of Elections and upheld the rejection of the charter. 

As with initiatives in the previous two years, this county 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.

The ACBORC is represented by Terry Lodge, an attorney from the Pennsylvania-based Community Environmental Legal Defense Fund. The CELDF has helped communities across the country, including Athens and several others in Ohio, with efforts to pass “bill of rights” laws to regulate oil and gas drilling and other industrial uses.

Those efforts, however, keep colliding – usually unsuccessfully – with state laws reserving regulation to state authorities. The underlying legal arguments behind the “community bill of rights” movement have yet to persuade judges in Ohio and other states to overturn those state laws.

In anticipation of the appellate court hearing today, the ACBORC mailed out postcards last week urging supporters to “Please Come Protect Your Right to Vote” this morning at 8:30 at the Athens County Courthouse.

Dick McGinn, a leader of the ACBORC, spoke during the rally, citing three reasons why Athens County citizens must have an opportunity to vote on the charter.

“First,” he said, “in Athens County, 600,000 gallons of toxic fracking wastes are being dumped without our permission, and without even the courtesy of a public hearing… Athens County is served by a single aquifer that runs as shallow as 167 feet deep. If industry and the government ruin our water supply, Athens County will have been sacrificed once again for the sake of corporate profits.”

The second reason McGinn cited, is the need to protect the citizens’ right to home rule that will allow the banning of injection wells in the county. “In Ohio law, petitions must be adopted by vote of the people without government interference. But in our case, which we are appealing today, the irony is complete. All three branches of state government have worked to crush the people’s right to vote on the charter.”

Referring to an Ohio law that reserves regulation of oil and gas development to the Ohio Department of Natural Resources (which is substantially similar to laws in adjoining states), McGinn said, “The legislature has passed unconstitutional laws giving ‘powers’ to unelected state agents to decide where and when to frack and to locate injection wells. Boards of election have been ‘authorized’ to deny citizen petitions before the vote. And the courts – including the state Supreme Court – have consistently elevated the powers of government over the rights of the people.  So we don’t just have an injection well problem, we also have a democracy problem.”

Finally, according to McGinn, “Climate change caused by the burning of fossil fuels is killing people, and it threatens to destroy civilized life on earth unless we transition to sustainable energy sources.”

In a similar vein, the ACBORC’s appeal in this case argued that the Athens County Board of Elections and Judge McCarthy failed “to recognize the constitutional right of local community self-government, which prevents Board of Elections and the courts from disqualifying a proposed charter until the people have voted on (it).”

In his response to that argument, Athens County Assistant Prosecutor Saunders maintained that while the right to vote is fundamental, the “right to legislate” is not, but rather is a “wholly created state right.” Both the Ohio Supreme Court and state Legislature “have provided guidance to (the Board of Elections) that allows for substantial regulation of elections,” Saunders wrote. “Appellee (BOE) is simply abiding by such authority. In absolutely no way has appellee discriminated upon any class and has not restricted appellant (ACBORC) access in any avenue to advocate their proposal.” A court should not interfere with that regulation of elections “as long as it produces an honest and fair election.”

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