County official attends injection well strategy session

Anti-fracking protestors.

Representatives of committees in Athens County and two other Ohio counties seeking passage of anti-fracking county charters are asking the Ohio Supreme Court to order Secretary of State Jon Husted to dismiss protests against the measures and allow them to make the Nov. 3 general election ballots in the three counties.

The 10 plaintiffs in the complaint for a writ of mandamus (court order) filed it as an expedited election case, meaning a relatively accelerated schedule for briefs and evidence goes into effect.

In a decision Aug. 13, Secretary of State Husted rejected petitions for the charter/bill of rights proposals in Athens, Medina and Fulton counties, finding that the provisions in each of the charters relating to oil and gas development represented an attempt to circumvent state law in a manner Ohio courts already have found to violate the state constitution.

Husted also ruled that submitted petitions for charter proposals aren’t valid because they “fail to provide an alternate form of government consistent with clear statutory and constitutional requirements…”

Husted was considering the matter as a result of protests against the charter petitions in each of the three counties. Joanne Prisley, represented by local attorney Michael Hollingsworth, filed the protest in Athens County.

In the Aug. 19 complaint for a court order overturning Husted’s decision, the 10 complainants, representatives from Athens, Fulton and Medina counties, argue that Husted overstepped his authority in upholding the protests against the county charter petitions.

They say the Secretary of State is forbidden constitutionally to exercise the power to nullify the charter petitions based on “his particular quibbles over their content and legality.”

“Respondent’s (Husted’s) ‘invalidation’ of the three petitions is unconstitutional, arbitrary, illegal and an abuse of his legal authority,” the complaint alleges.

Husted, in his Aug. 13 decision, argued that it’s within his scope of authority to rule on both the technical and substantive aspects of the proposed country charters in question. “… the unrestricted language of the sole statute governing this protest (of charters in the three counties) authorizes me to examine every aspect of these petitions in more than just a ‘ministerial’ fashion,” he wrote.

His press secretary, Joshua Eck, clarified that position Friday morning. “Authority to rule on these protests does not break out which parts of it (can be ruled upon for validity)… It’s all one document.

“We think that we’re pretty grounded (in law)…,” he added. “There’s a pretty good legal precedent to rule on these (petitions). If not us, who?”

Eck also acknowledged that one of the two reasons for invalidating the county charter petitions – localities not having jurisdiction over oil and gas development – presumably would apply to any future anti-fracking community bill of rights ballot measure proposed for any Ohio municipality (city or village), as long as someone submitted a protest to the Secretary of State’s office.

Athens city voters approved a community bill of rights banning fracking and injection wells in the general election last November. No protests were lodged with the Secretary of State’s office in advance of that election.

Representing Athens County in the current complaint are four members and/or supporters of the Athens County Bill of Rights Committee, Dick McGinn (its chairman), Austin Babrow, Sally Jo Wiley and John Howell.

The 10 citizens are represented by Cincinnati attorney James Kinsman and Toledo attorney Terry J. Lodge. Both work with the Pennsylvania-based group, the Community Environmental Legal Defense Fund (CELDF), that helps local communities’ efforts to ban and/or restrict oil and gas drilling and other perceived industrial/corporate threats. The CELDF provides the template for community bill of rights laws that seek to assert local control over environmental regulation. In Ohio, that runs right up against a state law that expressly reserves oil and gas regulation to the Ohio Department of Natural Resources.

Ohio courts, including the Supreme Court, have essentially supported the principle that the state has jurisdiction over oil and gas regulation, though the CELDF-supported local groups continue to press their legal and political argument that local human and environmental rights are sacrosanct, and that efforts to protect those rights are protected constitutionally.

So far, those arguments have not met much success across the country, and leaders of CELDF have suggested publicly that they’re not as concerned with winning in the courts as winning in the court of public opinion.

In a news release issued Thursday morning, the CELDF quotes its attorney Kinsman stating, “The peoples’ right to initiative is being trounced upon by our own elected Secretary of State, who was clearly ‘moved’ by the arguments of the oil and gas industry (perhaps their funding as well), yet not by the very people who elected him. It is the people’s constitutional right to vote on our own initiatives.”

The release then quotes Lodge, the other CELDF attorney in the case: “Secretary Husted has set himself up as Ohio's censorship goalie. If the 'wrong' idea comes up for a vote, he, alone, can veto to cancel the election. If the Ohio Supreme Court OKs this arrangement, look for every future referendum that involves people vs. corporations to disappear through the Husted Loophole in Ohio, the 'bah-no-no' republic."

Asked about the CELDF attorneys’ comments, Eck, from the Secretary of State’s office, said Friday morning, “Our opinion was completely filled with Revised Code citations… It was grounded in law, which is something that cannot be said about (legal filings from the charter supporters).”

AS FOR TIMING, the CELDF release states that the appeal “will be ‘fast-tracked’ as an election case with a decision by the Supreme Court expected by Sept. 15.”

It’s uncertain where the group got that date. The rule for expedited election cases, such as this one, calls for the respondent, in this case Secretary of State Husted, to file an answer to the county charter supporters’ complaint within five days of an official acknowledgement that Husted has been served (which hadn’t happened as of Friday).

Then the complainants have three days after Husted’s filing his answer to file their own evidence and merit brief in response, or within three days of the deadline for that material.

Husted then has another three days to file his response to the complainants’ answer, after which the complainants (charter supporters) have another three days to submit a reply brief.

At that point, the Supreme Court will begin deliberating, though nothing in the court rules sets a deadline for the high court’s decision. The statute just suggests that a “prompt disposition” is necessary since the complaint is related to an upcoming election.

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