ATHENS, Ohio — An Athens County judge ruled on Tuesday that the city of Nelsonville must put its city charter up for a vote in the November general election.
Common Pleas Court Judge George McCarthy ordered Nelsonville City Council to convene to consider an ordinance to allow the petitioners to get their issue on the Nov. 5 ballot.
The Nelsonville City Charter requires the city to pass such an ordinance to place a citizen-led initiative on the ballot, but the city has so far declined to bring an ordinance for this issue. The Athens County Board of Elections has deferred to the charter’s requirement.
McCarthy granted the motions for preliminary and permanent injunctions to restrain the city “from preventing Nelsonville City Council from considering and passing an ordinance requiring the submission of petitioners’ initiative to the Athens County Ohio Board of Elections” by Aug. 7, the deadline for getting ballot initiatives on the ballot.
The judge ruled that the initiative petitions had the necessary number of signatures and thus “was required to come before Nelsonville City Council for their consideration of passing an ordinance to send the initiative to the Athens County Board of Elections at the very next city council meeting,” as required by the Nelsonville City Charter.
McCarthy also issued a writ that ordered the council “to convene and consider passing an ordinance submitting petitioners’ initiative.“
During the approximately two-hour hearing Tuesday morning, former Nelsonville City Council President Greg Smith and Nelsonville resident Vicki McDonald, who chairs the ballot initiative committee, testified that they followed the charter’s procedure for pursuing the ballot initiative. They were represented by attorney Daniel Klos.
Representing the city and its council were Mrinali Sethi of Reminger, a Cleveland-based law firm that represents the city’s insurance carrier, and City Attorney Jonathan Robe. Sethi presented closing arguments on the city’s behalf.
In a letter to Klos dated July 8, Robe set out the city’s position on the petition, citing a memo from then-City Attorney Garry Hunter and a city ordinance that rejected a 2015 petition on abolishing the charter. Robe also advised the city council that it should convene its judiciary committee to review the 2015 ordinance. That has not happened to date.
The judge was not impressed by the city’s reasoning regarding the 2015 ordinance, which rejected a petition on grounds that it did not “have a reasonable transition period and procedure” for electing a new city government. The 2024 ballot initiative appears to have corrected that problem, allowing a full year for the city to “return to the same form of government as it had” before the charter took effect on Jan. 1, 1995.
McCarthy said the ordinance was specific to the 2015 failed charter abolition initiative and so did not apply to the current petition.
In his preliminary and permanent injunction order, McCarthy states that “McDonald took reasonable steps to make sure that the initiative would come before Nelsonville City Council on their next meeting held on July 8, 2024.”
Because the council did not prepare or discuss an ordinance on the petition, “Nelsonville City Council, without cause, failed to carry out their duty pursuant to the city charter to consider a resolution adopting an ordinance to refer the initiative to the board of elections,” McCarthy wrote.
Also in court Tuesday morning was T.L. Warren of the Athens County Prosecutor’s Office, on behalf of the Athens County Board of Elections, whom Smith and McDonald later named in their suit in an amended complaint filed July 28. Warren filed a notice of appearance and response to the complaint on Tuesday, July 30, although the document did not appear on the docket until Wednesday morning.
Warren’s response notes that Smith and McDonald came to the board of elections office on July 16 and tried to file the petition for the November ballot even though the city council had not approved an ordinance on it as required by the city charter.
“Deputy Director Tony Brooks explained to them that they could not move forward without the city ordinance to place it on the ballot,” the response states.
The county argued that it was not given sufficient notice that it had been added to the complaint or that it was a party in the filing seeking a restraining order. It further argues that Smith does not have standing to sue because he is not an official member of the petition committee, and McDonald lacks standing because “she has not been designated as a representative of the committee, nor has any of the other members of the committee joined as parties.”
In his order granting a preliminary and permanent injunction, McCarthy stated that “all other objections by respondents not specifically addressed herein have been carefully considered and are overruled.”
The court set another hearing for 10 a.m. Friday, Aug. 2, to check on the city’s compliance with the court’s orders. However, the city filed an appeal of McCarthy’s orders in the Fourth District Court of Appeals at 11 p.m. Wednesday night, Robe told the Independent.
The city also requested a stay of the injunction from the common pleas court during the appeal.
McCarthy did not rule on McDonald and Smith’s request for damages, which they included in their initial petition. A hearing for the damages is to be scheduled at a later date. Under Ohio law, McDonald and Smith “may recover the damages which [they have] sustained, to be ascertained by the court or a jury … as in a civil action, and costs.”
The BOE announced on Wednesday that it would hold an emergency board meeting on Thursday, Aug. 1 at 3 p.m. at the board office, 15 S. Court St. Suite #130, to confer “with legal counsel regarding pending litigation concerning The City of Nelsonville ballot issue.”
It is not clear what would happen if the council were to vote down an ordinance to put the initiative on the ballot. Brooks and Warren did not respond to an inquiry in time for publication.
“The Ohio Constitution is the highest law in the State of Ohio (under the U.S. Constitution, of course) and is therefore of superior obligation to the Nelsonville City Charter,” Robe said in an email.
The city maintains that “City Council can’t — and won’t — prevent voters’ ability to exercise their constitutional right to choose their own form of government, as long as the proper constitutional procedures for placing the measure on the ballot are followed,” Robe wrote. “And because those procedures are specified by the Ohio Constitution, the Nelsonville City Charter can’t dictate different procedures and City Council can’t prevent a properly presented ballot initiative from being placed on the ballot.”
The 2024 general election is Nov. 5. To participate without using an absentee or provisional ballot, Ohio residents must register to vote by Oct. 7. Voters may register online.
Disclosure: Robe completed and filed incorporation papers for Southeast Ohio Independent News, the nonprofit that publishes the Athens County Independent. He also has provided the Independent with legal advice.
Corinne Colbert contributed reporting for this story.
Update: Since publishing this story, the stays for Judge McCarthy’s orders have been granted, pending appeal (Aug. 1). The case now moves to the Ohio Fourth District Court of Appeals. The hearing set for Aug. 2 was vacated.
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