September 2019

Bryan Times 9-5-2019

Supreme Court denies Alliance ballot appeal

Report by Ron Osburn

The Ohio Supreme Court in a unanimous decision Tuesday upheld the Williams County Board of Elections’ decision earlier this summer blocking the Williams County Alliance from placing a county charter initiative on the November ballot.

The Alliance, a local grassroots residents group, had appealed to the Supreme Court after the Williams County Common Pleas Court on July 18 also upheld the county election board’s July 8 decision.

The Alliance, backed by the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), had sought a charter as a way to create “home rule” and to protect residents from a proposed plan by Artesian of Pioneer to withdraw water from the Michindoh Aquifer and sell it to entities outside the county.

The charter would switch the county from its current statutory form of government to one governed by a county charter.

The Alliance had submitted petitions with more than 2,000 valid signatures of county registered voters, more than the 1,363 needed to qualify for the ballot.  But Elections Director A.J. Nowaczyk rejected the petition, saying that on advice of County Prosecutor Katie Zartman, and in his reading of the law, language in the proposed charter issue exceeds the scope of the powers afforded to local governments by the state.

Citing “existing Ohio (legal) precedent” and previous case law from the Ohio Supreme Court, Common Pleas Judge J.T. Stelzer’s ruling backed up that contention, saying “the content of the proposed charter fails to provide for an alternative form of government as required in Ohio Consitution Article X, Section 3.”

Alliance leader Sherry Fleming said the group sought a ruling from the Supreme Court after the elections board declined their request to forward a letter to the Ohio Secretary of State’s Office protesting the board’s decision to reject the Alliance’s proposed county charter initiative.

Fleming said the Alliance pursued the protest to the Secretary of State’s Office even after the Williams County Common Pleas Court decision because in a 2016 case involving an unsuccessful attempt by residents in Medina  County to bring a charter to a vote, the Ohio Supreme Court faulted the Medina group for not pursuing both a court case and a protest with the secretary of state.

Fleming said the Alliance did not pursue the case with the 6th District Appellate Court because an appeal on a similar case by a CELDF-based group in Athens County is still awaiting a decision two years later.

The Ohio Supreme Court ruling Tuesday rejected the appeal, saying the Alliance “failed to support their claim that initial review by a court of common pleas, followed by an appeal of right to a court of appeals, affords them an inadequate remedy at law.  Because (the Alliance) had an adequate remedy at law, we deny the writ.”

The Supreme Court decision surprised no one on either side of the issue.

“It didn’t surprise me.  I thought we would be denied on what I call a procedural issue, or technicality.  But I don’t feel we did anything wrong.  We’re trying to follow what little direction we’re getting from the state and the courts, said Fleming, who maintains the Ohio Constitution — through Article 10, Section 3 — guarantees the right to pursue a citizens charter initiative and the state legislature and courts have used technicalities to unconstitutionally reject the Alliance’s efforts.

“We still feel like they haven’t ruled on the substance of the charter,” Fleming said, using HB463, passed by the Ohio legislature in 2016, as an example of the state’s overreach in restricting charter efforts.

County Commissioner Terry Rummel said he wasn’t surprised at the decision, but did express irritation at the Alliance and especially CELDF, as the county brought in a Columbus-based legal team to assist Zartman in defending the election board decision in court.

“I’m not surprised at the (Supreme Court) decision.  I am surprised we had to spend $20,000 to defend ourselves against a document that was so poorly designed it wouldn’t hold up in any court.  Why we continue to waste the people’s money on this (charter) is beyond me.  And I’m frustrated to see people like CELDF from outside Williams County come in and try to influence our county.

“And especially when (the test well) is located in Fulton County — the charter wouldn’t stop anything, even if it was on the ballot,” said Rummel, who did not support a commissioner resolution passed 2-1 earlier this year opposing AOP’s plan.

Bob Golding, a Bryan resident who’s emerged as a frequent critic of the charter, also said he expected the Supreme Court to rule as it did.

He said with the dozen previous rejections statewide of proposed charters, and with the Supreme Court seeing no new compelling reason to reject previous case law, “I was pretty sure it was going to be thrown out.”

Golding maintains the county’s charter does exceed the powers given to the county, and also that charter proponents misread the directions to file either a protest letter to the Secretary of State or appeal to the Common Pleas Court, “It’s pretty clear, you can do one or the other.  They chose the (common pleas) court,” he said.

“If the Ohio Supreme Court believed the board of elections was wrong, they had everything in their power in front of them to reverse it.  But they did not,” said Golding, adding though he opposes the charter, he also opposed and still opposes the AOP plan.

Board of Elections Vice Chairman Scott Towers said board members were advised by their counsel, the county prosecutor, not to comment until litigation was complete, which he termed “frustrating” due to erroneous comments he heard and saw over the past several months.

The elections board voted 3-1 to deny the petition, with local attorney and Democratic Party chairman Paul Duggan the lone no vote.

Towers said the board followed Ohio Revised Code in making its initial decision.

“The Ohio Revised Code says we must not only count signatures, but also determine whether the petition falls within the scope of a county’s authority to enact via initiative.  In this case it did not.  The board made a decision that the law requires,” Towers said.

“We now have two court decisions that back up our decision, that the board acted lawfully, and that’s important because it backs up the credibility of the board.  It’s not about water, or anything else, it’s about the (lack of) legality of the charter,” Towers said.

Tish O’Dell, a Boardman, Ohio, resident who works for CELDF, disagreed.  She pointed out the Williams County charter initiative is the latest in at least a dozen other charter home rule efforts since 2015 — the others geared as a way to stop fracking in their county — that have been denied by local common pleas courts, state appellate courts, the Ohio Secretary of State’s office and/or the Ohio Legislature.

She said Tuesday’s Supreme Court decision takes away, through “technical reasons,” the constitutional right to bring a county charter proposal to a vote, which she says constitutes “voter suppression.”

In past charter cases we were accused of not exhausting all remedies, and so we used all remedies here, and now they’re flipping it and saying we did it all wrong.  It’s using a lot of technical reasons for denying it and avoiding the issue, which is people having the right to vote.  Whether you’re for or against it, Democrat or Republican, you should have the right to vote.  But they take it off the ballot and now people don’t even have a chance to vote on it, ” O’Dell said.

The Supreme Court decision appears to end the Alliance’s attempt at a county charter, at least for now.

Fleming said the Alliance plans to have a booth at the Williams County Fair that will focus on providng education on the recent new permitting processfor large water withdrawals that was part of the recent state budget bill.