A bill signed into law last week apparently will make it more difficult for local activists to get charter amendments on the local ballot in Ohio, when those amendments are deemed in conflict with state law.
That would spell bad news for efforts in Athens County and other Ohio counties to pass county charters that regulate or ban oil and gas production activities, as well as efforts by Ohio communities to decriminalize marijuana.
In both cases, the local charter would be at variance with a state law that Ohio courts and lawmakers say constitutionally trumps the local law.
The provision in question was inserted by the state Senate into a grab-bag House Bill (463) that also included provisions involving autism services, property foreclosures and recall of municipal officials. The House passed the bill on Dec. 14 after getting it back from the state Senate, and Gov. John Kasich signed it on Jan. 4. These types of bills – containing many unrelated provisions – are common at the end of legislative sessions when lawmakers are trying to wrap up the two-year term.
Dick McGinn, who leads the Athens County Bill of Rights Committee (ACBORC), said Friday that the group is leaning toward preparing another charter amendment for the Athens County ballot as a way to directly challenge H.B. 463.
“The irony is that possibly the only way that the Bill of Rights Committee can defeat this new law is to give our local Board (of Elections) the opportunity to use it against us, and if they do, we will appeal to the Court of Common Pleas,” McGinn said.
Critical comments in the nonpartisan Ohio Legislative Services Commission analysis of H.B. 463 should be encouraging to McGinn and the ACBORC. The LSC writes, “The bill’s provision concerning local initiative petitions might be vulnerable to a challenge under the Ohio constitution on two grounds: 1) that the bill infringes on the people’s right of initiative; and 2) that the bill violates the separation of powers.”
So just what does H.B. 463 do?
In its summary, the LSC writes that 463 “requires a board of elections or the Secretary of State to invalidate a local initiative petition if the board of Secretary determines that the petition or any portion of it does not fall within the scope of the local government’s constitutional authority to enact ordinances or does not satisfy the statutory prerequisites to place the issue on the ballot.”
TO UNDERSTAND HOW THIS affects the ACBORC’s efforts, some background is in order.
This past September, for the second year in a row, the Ohio Supreme Court ruled that a proposed anti-fracking charter amendment for Athens County would not appear on the county’s general election ballot. The amendment, in addition to setting up a charter form of government, would have outlawed fracking waste injections wells in Athens County, as well as the use of county water resources for oil and gas drilling activities in Athens County and elsewhere. The latter provision would substantially curtail any future local fracking, which uses an immense amount of water. So far, the deep-shale oil and gas boom hitting other parts of eastern Ohio in recent years hasn’t extended into Athens County, and it’s an open question whether it ever will.
The same Supreme Court decision also tossed out similarly crafted charter amendment petitions for Meigs and Portage counties. The high court did the same thing the previous year to charter amendment petitions for Athens, Meigs and Fulton counties, but for different reasons.
Both years, the cases reached the Supreme Court (and before that, lower courts) after appeals of decisions by county boards of elections and the state Secretary of State rejecting the petitions.
In its majority decision in September (with one dissenting vote), the Supreme Court ruled that boards of election in each county with a proposed charter, as well as Ohio Secretary of State Jon Husted, were within the law to reject charter petitions. The rejections, the court ruled, were not based on substantive issues, which would not be a legal rationale, but rather on the charter initiatives’ failure “to meet threshold requirements for inclusion on the ballot.”
House Bill 463 appears to be a legislative effort to turn a particular substantive issue – the state of Ohio reserving regulation of oil and gas activities to the Ohio Department of Natural Resources – into an explicit legal rationale for a board of elections and/or the secretary of state to reject a local anti-fracking charter amendment. The same reasoning might apply to local efforts to decriminalize marijuana.
An article posted Dec. 20 on the Columbus Business First website covered the Ohio Senate’s 26-5 acceptance of H.B. 463. At the time, state Sen. Kevin Bacon, R-Minerva Park, cited anti-fracking charter amendment efforts in Youngstown and a city of Newark marijuana decriminalization law as reasons for adding the provision relating to county charters and initiatives.
Ultimately, the end result of H.B. 463 likely will be the same for local efforts to regulate or ban fracking. Ohio courts, from Common Pleas all the way to the Supreme Court, have consistently sided with the oil and gas industry and state of Ohio in affirming that the state, through the ODNR, has primacy over oil and gas regulation.
H.B. 463 would effectively provide a shortcut to that same result, allowing legal rejection of charter amendment petitions on that basis by boards of election and the secretary of state.
But McGinn of the ACBORC believes this violates the separation of powers, allowing executive branch of government – namely the secretary of state and boards of election under him – to interpret what’s constitutional and what’s not. The LSC analysis appears to support that criticism.
“Ohio courts have confirmed over and over – including Walker v. Husted (2015) – that laws are made by the legislative branch of government (including citizen petitions and municipal legislative referendums), but that the validity and enforceability of those laws can only be determined by the courts,” McGinn said. “There are simply no legal grounds for local Boards of Elections to interfere, given the doctrine of separation of powers.”
ALBANY AREA RESIDENT JIMMY STEWART, a former state representative for this area, serves as president of the Ohio Gas Association and also sits on the Meigs County Board of Elections. He offered his perspective on H.B. 463 as someone with a wide mix of relevant experience and background.
In an email over the weekend, Stewart said he believes that the section in H.B. 463 that involves county charters will hold up in court. “The Ohio Supreme Court has already said that the (board of elections) and secretary of state were within their authority to keep proposals off the ballot that failed to meet constitutionally mandated threshold requirements.”
According to Stewart, that four-word phrase covers the issue of whether state law prevails over local laws, as is the case with the anti-fracking county charter amendments and local marijuana decriminalization laws.
He cited the beginning section of Article X Section 3 of the Ohio Constitution that says county residents can draft and adopt a charter on “matters which such county may now or hereafter be authorized to control by legislative action. Every such charter… shall provide for the exercise of all powers vested in, and the performance of all duties imposed upon counties and county officers by law.”
Stewart’s point is that this is a basic requirement that the anti-fracking charters violate from the get-go since state law already reserves regulation of oil and gas activities to the ODNR.
“Simply meeting constitutionally mandated threshold requirements as opposed to actually deciding what is/is not constitutional are entirely different things,” he said. “The Ohio Supreme Court has already said that the board of election and secretary of state were within their authority to keep proposals off the ballot that failed to meet those constitutionally mandated threshold requirements.”
The Legislative Services Commission did address this argument, noting that it’s not clear whether the state constitution “would allow the Secretary of State or board of elections to reject a petition on the basis that it proposes a law that, if adopted, would be unconstitutional.
“A reviewing court might rule that the constitutional right of initiative includes the right to initiative a potentially unconstitutional statute. If the statute became law and was challenged on constitutional grounds, the courts would have the authority to prevent its enforcement.”
The LSC also noted that a reviewing court “might find that the bill (H.B. 463) places an unconstitutional burden on the people’s right of initiative.”
Stewart, however, while expressing respect for the LSC, questioned that reasoning. “Should ANY language or proposal no matter how ridiculous be allowed to go on a local ballot for a vote?” he asked. “What if that language directly contradicts or attempts to override state or federal law? Language contained in these so called ‘county charters’ seems to directly contradict state law and even suggests that it trumps state law, federal law and international agreements (see Section 1.12 paragraph 3 of the Athens County proposal). Is that kind of system really a good idea? If you think about it, there are plenty of counties in Ohio where (given that same authority) very conservative voters could pass local laws that progressives abhor. Local control versus statewide uniformity is not a new debate and won't be going away anytime soon.”
As for the way H.B. 463 got passed at the end of session, Stewart noted that contrary to the notion that the bill was an underhanded way to sabotage local charter amendments, it had bipartisan support and was discussed in public session.
Yet, with so many unrelated provisions, one can’t assume that legislators voting “yes” approved of every provision in the bill.