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Ohio’s top court further muddies fracking issue with new ruling

By David Skolnick

Friday, April 27, 2018

One consistent thing about the Ohio Supreme Court when it comes to decisions about whether it’s constitutional to put an initiative to ban fracking on the Youngstown ballot is its inconsistency.

The Mahoning County Board of Elections has voted three times to not permit the measure to appear on the ballot.

In September 2015, the Supreme Court voted 7-0 against the board and overturned that decision.

In October 2016, the court voted 4-3 in favor of the board’s decision to not put the initiative on the ballot.

And Tuesday, the court voted 5-2 against the board and ordered the charter amendment to be put in front of Youngstown voters.

A frustrated David Betras, the board of elections’ vice chairman, said: “It leaves me confused as to what the law is, and I’m an attorney. They need to rule on this issue one way or the other. It’s very confusing for the general public.”

Even Terry J. Lodge, a Toledo attorney who represents the Committee for the Youngstown Water Protection Bill of Rights, which won Tuesday’s decision, said: “We’re certainly happy they restored the measure to the ballot, but we’re pretty disappointed with the reasoning.”

The court ruled against the board of elections this time because of a minor change in the ballot language.

The proposal rejected last October by the court would have authorized “private citizens to enforce their rights through nonviolent direct action or by filing suit as a private attorney general.”

The court wrote of the previous decision: “We agreed with the board’s determination that a municipality lacks legislative power to authorize Youngstown residents to file suit as a ‘private attorney general’ because a municipality cannot create a new cause of action.”

But in the new initiative, the court wrote that “the offending provision” is “not included in the proposed charter amendment now before us, and the board offers no clear support for its conclusion that relators’ current proposal is beyond the scope of the city’s legislative power.”

The court added: “There was no creation of a private right of action – an ‘individual’s right to sue in a personal capacity to enforce a legal claim’” – in this case.

technicality

So the only difference essentially is a technicality in the ballot language.

How are the board members supposed to know one way is invalid and another way is legal?

On top of that, the 2015 decision that put the measure on the ballot read that the board did “not have the authority to sit as arbiters of the legality or constitutionality of a ballot measure’s substantive terms. An unconstitutional amendment may be a proper item for referendum or initiative. Such an amendment becomes void and unenforceable only when declared unconstitutional by a court of competent jurisdiction.”

While the board of elections ruled in a proper time period to keep the ballot off the ballot in a March 13 vote, the Supreme Court took a lot of time to issue what amounted to a five-paragraph decision Tuesday.

I realize the court’s justices have to handle hundreds of cases, many of them far more pressing than this, and they did resolve this in about five weeks, but the timing of the decision is pretty bad.

The problem is early voting started April 10 and 1,085 people in Youngstown had already voted.

To its credit, the board of elections sent supplemental ballots to those people, and a day after the decision it already had absentee ballots for city voters with the anti-fracking charter initiative language included.

But is it enough?

The decision came exactly two weeks before the May 8 primary election and two weeks after early voting started.

This doesn’t give either side adequate time to campaign on the issue.

Six rejections

Of course, similar anti-fracking proposals have been on the city ballot six times dating back to 2013 – all of which were rejected by voters – so there is familiarity with this measure.

But that doesn’t mean the two sides shouldn’t have a fair chance to put up yard signs, send mailers to city voters and argue the merits of the issue.

Lodge, attorney for the proposal’s supporters, said he may file a “request to reconsider” asking the court to have a special election or hold over the issue until the November general election.

Waiting until the general election seems like a reasonable idea – particularly when you consider that supporters have said they will put this issue on the ballot until it passes.