Husted sued over charter decision

Petitioners say he overreached authority

By David J. Coehrs - [email protected]

Ohio Secretary of State Jon Husted’s decision to invalidate a petition for a charter government in Fulton County has been challenged in an objection forwarded to the state Supreme Court.

Toledo attorney Terry Lodge and Cincinnati attorney Bill Kinsman, who represent the petitioners, filed a complaint Aug. 19 for a writ of mandamus. The court order would mandate Husted to correct what the complaint charges is an abuse of discretion.

Swanton residents Renee Walker, John P. Ragan and Elizabeth Athaide-Victor are among the complainants named in the objection. All three are opponents of natural gas pipeline installation in Fulton County. Athaide-Victor said previously the petition was drafted in part to give county residents a voice in whether pipeline companies should be permitted to conduct business locally.

Seven others named are residents of Athens and Medina counties, which had similar petitions for charter governments invalidated by Husted and are included in the 13-page complaint.

Lodge and Kinsman argue that Husted’s Aug. 13 decision bucks 212 years of Ohio constitutional interpretation that requires duly completed petitions to be placed on the general ballot. The complaint asks that Husted comply with Ohio Revised Code Section 307.95, which describes the requirements necessary to implement a charter government. It claims the petitioners’ rights were violated when Husted “refused to perform his nondiscretionary legal duty to overrule improper and legally-unsupported protests” against the county petitions.

In his decision, Husted wrote that he is given “unfettered authority” by the ORC to determine the validity or invalidity of a petition. He said he was “unmoved” by the petitioners’ assertion “that I am unable at this time to consider the substance of the proposed county charters as I reach my decision.”

The decision states the charter petition for Fulton County–drafted by the Common Sense Energy Coalition and the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), and filed with the Board of Elections June 24–violates the way a charter government must be organized. It also says the petition’s content runs counter to court decisions concerning the rights of oil and gas companies to operate in Ohio.

Husted went on to state: “The unavoidable truth is that the Athens, Fulton, and Medina petitions simply fail to adhere to the Revised Code’s clear requirements for a legally-constituted ‘alternative form of government.’”

Lodge and Kinsman argue that Husted “is forbidden by pertinent constitutional principles from arrogating to himself the power to peremptorily ‘invalidate’ the three Petitions because of his particular quibbles over their content and legality.”

Furthermore, the structure of the petitions follows state statutes, and they contain more than the required number of signatures by eligible voters, the attorneys said.

Their complaint says Husted’s premise that the charter proposals are invalid “exposes a serious misunderstanding of the distinct nature of the county charter proposal invoked by electors in the three counties.”

Husted’s decision was in response to a complaint against the charter petition filed by three Fulton County residents, Metamora attorney Charles Saunders, RJ Lumbrezer of Lyons, and Roy Norman of Wauseon. In the complaint drafted by Saunders, he contends the rights of oil and gas companies to conduct business in Ohio are under federal law, leaving a charter government no authority in the matter.

Lodge said Friday that Husted is assuming the power to examine issues, “and decide effectively whether it’s worthy to allow the voters. It’s an astonishing decision, and if the Supreme Court allows it…they will make the decision that one person is delegated complete veto power over what may go on the vote. It’s a very scary precedent.”

Saying Husted isn’t allowed to speculate on whether a petition is legal, Lodge called his decision “a ridiculous overreach.” He added, “This is a separation of powers problem. The executive branch in the form of Husted is removing court review from the decision of whether this should be made law by the people. That’s a ridiculous system, where you can veto something you don’t like just because you don’t agree with it.”

The petition would extend the right to county commissioners to enact laws, giving them concrete legal power, Lodge said.

He dismissed Husted’s claim the charter petition is bogus because it doesn’t include a provision to appoint a county executive to oversee the government. Lodge cited a handbook issued by the Secretary of State’s office that states the Ohio Constitution “authorizes the adoption of charters by counties and municipal corporations…Additionally, the Ohio Revised Code provides for other alternative plans of government that may be adopted by municipalities, townships, and counties.”

“You don’t have to restructure county government in order to have a legitimate charter proposal,” he said. Husted’s own handbook proves his decision wrong, and “it’s going to be a damned embarrassment,” Lodge said.

Kinsman said Ohio law makes it clear Husted’s authority stops at evaluating the validity of the petition and determining whether it has enough signatures.

“Any action by the Secretary of State or any elected official is premature,” he said.

Tish O’Dell, CELDF’s Ohio coordinator, said leaving the decision up to one person in the executive branch of government infringes on the courts’ powers.

“What can that mean in the future, if that becomes the precedent that’s set?” she said.

Lodge and Kinsman expected to file a motion by Monday asking the Supreme Court to rule in favor of their complaint. State Attorney General Mike DeWine must file a response to the motion by Friday.

Petitioners say he overreached authority

By David J. Coehrs

[email protected]

David J. Coehrs can be reached at 419-335-2010.

David J. Coehrs can be reached at 419-335-2010.