Supreme Court flushes county charters yet again

Terry Smith, The Athens News

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For the second year in a row, a proposed anti-fracking county charter amendment will not appear on the Athens County ballot, as a result of a decision by the Ohio Supreme Court.

This continues a pattern of failure in Ohio courts for charter amendments advanced by anti-fracking “community rights” groups. Local charter committees, including the one in Athens, receive legal help and guidance from a Pennsylvania public-interest group, the Community Environmental Legal Defense Fund (CELDF).

Community rights supporters decried Tuesday’s decision by the Supreme Court that tossed out similarly crafted charter amendment petitions submitted by Bill of Rights Committees in Athens, Meigs and Portage counties.

Dick McGinn, representing the Athens County Bill of Rights Committee, charged the state Supreme Court with inconsistency in its reasons for rejecting the charter amendments.

 “Last year, we advanced rights-based county charter initiatives in Athens, Medina, and Fulton Counties,” he said in a prepared release. “The Supreme Court determined they could not go on the ballot due to a technicality in the format. Yet they remained unclear in defining exactly what was required.”

McGinn continued, “We drafted new charters this year, using the ambiguous direction given by the Supreme Court. One has to wonder: How convenient to deny there are clearly articulated rules on creating a charter, and then avoid providing clarity.”

He said the varying legal bases for rejecting the charter measures “leave the people chasing a moving target and unable to vote on their own county initiative, year after year.”

Tish O’Dell, community organizer for CELDF, said the decisions compromise democracy and justice. “The people’s right to alter or reform their government is meaningless when the same government that the people want to alter, acts as gatekeeper, restricting access to direct democracy as they so choose,” she said.

In a majority decision, with one dissent, the Ohio 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.”

That conclusion, the court majority wrote, is entirely consistent with prior decisions that went against local charter committees.

The high-court majority also ruled against the charter committees’ argument that in imposing requirements on county charter amendments, the secretary of state and boards of election had violated their fundamental right to local self-government.

To the contrary, the justices said that argument – which they characterized as involving a “new fundamental right” – was too “broad” to be considered in this expedited pre-election case involving specific proposals. “Relators (charter committees) have failed to persuasively demonstrate why we should recognize a new fundamental right in the current proceeding,” the court majority wrote.

In his dissent from the majority opinion, Justice William O’Neill argued that the his colleagues on the high-court bench set too high a bar for local residents seeking to change their form of government. “The majority here would prefer that the relators (community rights charter committees) reinvent the wheel of government in one document. I disagree.”

In his dissent, O’Neill also referenced the oil-and-gas industry, which opposes local efforts to regulate or ban deep-shale drilling (fracking), and supports a state law that reserves regulation of oil and gas development to the Ohio Department of Natural Resources.

“The secretary of state does not have the power to veto charter petitions on behalf of the oil and gas industry simply because the citizens did not pick exclusively from the two forms of county government delineated in R.C. 302.02.3,” he wrote. “This is an usurpation of power from the people that we should not indulge.”

By not allowing the county charters to get to the ballot, the Ohio Supreme Court yet again has put off a day when the legality of the anti-fracking provisions contained in the charters are tested in court. The community rights language in local fracking regulations, when previously challenged in Ohio courts, has not gotten far.

The city of Athens has a bill of rights ordinance that bans fracking, though with no oil and gas operations yet proposed in the city limits, the law has never been deployed. That measure was passed overwhelmingly by city voters in 2014.