Ohio Secretary of State Jon Husted overreached his authority when he invalidated three charter reform petitions he believes are unconstitutional, the state Supreme Court ruled last week.
But the high court did back another of Husted’s arguments against the petitions, a decision that drops them from the Nov. 3 ballot.
Now an attorney representing the petitioners says a reasonable assumption possibly made while drafting the documents could be responsible for the invalidations.
In their nine-page decision, released Wednesday, the Supreme Court justices determined that Husted’s Aug. 13 rejection of charter reform in Fulton, Athens and Medina counties was illegal and beyond his scope. They criticized Husted for presuming his individual interpretation of the Ohio Revised Code gave him broad powers to make judicial decisions involving the petitioners’ requests.
All but one of the seven justices concurred with the ruling. Justice Paul Pfeifer concurred in judgment only, and Justice William O’Neill dissented.
Husted rejected the charter petitions based, in part, on his legal opinion that they defy the state’s exclusive right to regulate its oil and gas operations. He cited “State ex rel. Morrison v. Beck Energy Corp,” a recent court decision invalidating local ordinances regulating oil and gas extraction, specifically hydraulic fracking.
In their decision, the justices declined Husted’s urging to defer to his broader interpretation of ORC Section 307.95, which he claimed permitted him to prejudge a petition’s legality or constitutionality. He argued the statute gave him unlimited “discretionary authority” to decide a petition’s validity.
“We decline to do so because his interpretation is not reasonable,” the justices wrote. “Husted’s construction of the statute would lead to absurd results.”
The Supreme Court determined the ORC statute “confers no authority upon the secretary of state to invalidate charter petitions based upon his assessment of the legality or constitutionality of the measure, if enacted.”
Earlier in their decision, the justices conceded that an arguably unconstitutional proposal can still find its way to approval. But they emphasized that a proposal becomes void “only when declared unconstitutional by a court of competent jurisdiction. Until then, the people’s power of referendum remains paramount.”
However, they did invalidate the charter petitions after agreeing with Husted’s conclusion they violate ORC Section 302.02. The statute mandates that an alternate form of county government must include an elected or appointed executive position. The petitioners asserted their charter reform could retain the counties’ present governmental models.
“We hold that it was within Husted’s discretion to determine that the proposed charters were invalid because they did not set forth the form of government which is (required for) a valid charter initiative…and to invalidate the three petitions on that basis,” the decision states.
Terry Lodge, the attorney representing the counties’ petitioners, said the petitions were invalidated on a technicality: The language didn’t articulate enough detail about the public offices the petitioners wanted to retain within their charter reform.
“The court said they didn’t specify enough,” Lodge said. “An informed petitioner or voter is constitutionally supposed to say exactly what they mean. The petition has to contain the entire proposal within it.”
He said the justices recognized the intention to keep the model of three county commissioners. But their decision inferred the petition language failed to properly identify specific offices of that type of government.
Lodge said the point is very technical, but also so basic to law the attorneys who helped draft the petitions likely felt it was unnecessary to include.
“It’s sort of a given,” he said. “I assume they figured they were making proper reference with the way it was worded. It’s a lesson learned, but it’s really awful to learn it in the middle of surgery.”
The charter petitioners do consider Husted’s dressing down by the Supreme Court their success, he added.
“We did take some satisfaction in the fact that it’s finally clear that nobody in the old chain gets to veto something that they think might be found unconstitutional later. Finally, once and for all, they laid (the court’s position) out as concretely as it can be. And that’s a huge hurdle. There was an awful lot of money spent trying to persuade the court the other way.”
Charles Saunders, the Metamora attorney whose formal objection to the Fulton County petition led the issue to Husted’s office, said the court’s decision is a victory for the county’s taxpayers.
“It will save (them) thousands of dollars. We would have had multiple frivolous lawsuits if this thing would have passed,” he said.
Lodge said it will prove laborious to launch a new petition campaign for charter reform. “But there are a lot of motivated people behind these charter proposals,” he said. “I’m pretty confident that you’ll see a renewed effort in Fulton County.”
David J. Coehrs can be reached at 419-335-2010.