For the third year in a row, the Ohio Supreme Court has rejected a proposed county charter that otherwise would have gone to Athens County voters for consideration.
The Athens County Bill of Rights Committee (ACBORC) has been working to bring its anti-fracking charter to voters since 2015, with the case reaching the Ohio Supreme Court each year and being rejected by the high court each year.
In July, the Athens County Board of Elections rejected the ACBORC charter as invalid by saying that a proposed executive council (comprising 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.
This year, the ACBORC pursued both available methods of appeals, so an appeal is also pending before an appellate court.
In a split decision, the Ohio Supreme Court rejected the charter with two justices concurring, three more concurring in judgment only, and two dissenting.
Like last year, the state high court rejected the charter saying it failed to provide for the exercise of all powers and duties of county government.
“The Athens County charter petition is nearly indistinguishable from the language we rejected in (previous cases),” the decision said, taking issue with language that refers to duties of and compensation for county officials to be determined “in the manner provided by general law.”
“The constitutional language is clear: a county charter must provide for the exercise of all powers, and the performance of all duties, imposed on counties and county officers by law,” the majority decision said. “For this reason, the boards did not abuse their discretion when they invalidated the petitions.”
The majority decision was concurred upon by Chief Justice Maureen O’Conner and Justice Judith French. Justices Sharon Kennedy and Terrence O’Donnell concurred in judgment only but did not offer an opinion.
Justice Patrick DeWine concurred in judgment and offered the opinion that he found it unnecessary for the court to review the content of the proposed charters because there is already an “adequate remedy at law” as the case proceeds in the Fourth District Court of Appeals.
Justice Patrick Fischer dissented from the decision, with Justice William O’Neill joining that dissent. Last year, only O’Neill dissented from the charter’s rejection.
In his dissent, Fischer cited the court’s ruling in a previous charter case from 2015, Walker v. Husted, wherein the court held that elections officials do not have the authority “to sit as arbiters of the legality or constitutionality of a ballot measure’s substantive terms” because that authority is reserved for the judiciary.
Whether a charter delineates the powers of county officials is, at least arguably, a substantive issue, Fischer wrote.
“I would hold that the… Athens County Board of Elections exceeded their authority and thereby abused their discretion in refusing to place the proposed county charters on the ballot,” he wrote. “Whether the proposed county charters are constitutional are decisions for the courts, and as we have consistently held, those decisions should be made only after the election, if the measures pass.”
Following the Ohio Supreme Court’s decision, the Community Environmental Legal Defense Fund, which has been doing legal work for the ACBORC, slammed the majority decision as a blow to Ohioans’ constitutional rights to use citizen initiative to form charter government.
“In today’s decision, the Court determined that the ‘powers and duties’ of elected officers must be detailed in the charter, rather than referencing the Ohio Revised Code (ORC),” the release said. “Currently, there are two county charters in Ohio: Summit and Cuyahoga. Neither list each power and duty of every elected officer.”
ACBORC spokesperson Dick McGinn said in the release that the Ohio Supreme Court’s decision is indicative of what is being found at all levels of government these days.
“When the government that is protecting industry profits over ‘we, the people,’ is confronted with the people’s reforms, that government will not allow the reform to go to a vote of the people,” he said.
In the same release, Tish O’Dell, CELDF Ohio organizer, expressed no surprise that the court “found on behalf of industry and corporate profits.”
“This is what it means to live in a Corporate State,” she said. “Any illusion that we live in a democracy is obliterated with this decision. It is clear we need a new system – a new mechanism for the people to legislate and protect their communities from poisons and toxins that benefit greed.”
While arguments have been filed in the case before the Fourth District Court of Appeals, no decision had been issued by that court as of Friday. It’s uncertain what will happen with that appeal, though it’s probably too late to get the charter on the November ballot anyway.
A major issue at the heart of the charter case when it was before the Athens County Common Pleas Court went entirely unaddressed by the Ohio Supreme Court, even though it formed much of the pro-charter writ of mandamus before that court.
This is the matter of whether charter proposals filed under the Ohio Constitution are distinct from proposals for alternative forms of government under Ohio Revised Code statute. The charter’s alleged failing to meet statutory requirements was the basis for the elections boards’ rejection of it, though the pro-charter group argued that the elections board improperly applied statutory law to Ohio Constitutional law.
This question of Ohio Revised Code versus the Ohio Constitution was ignored by the Ohio Supreme Court alongside all the arguments regarding whether a county executive council constitutes a county executive.