NELSONVILLE, Ohio — Two Nelsonville residents behind the ballot initiative to abolish the city charter have taken their efforts to court, in hopes of forcing the city to put the issue on the ballot in the Nov. 5 general election.
Vicki McDonald and former Nelsonville City Councilman Greg Smith McDonald filed a court petition for mandamus in Athens County Court of Common Pleas Civil Division on July 18. The petition asks the court to force the city of Nelsonville and its council to put the continued existence of the city’s charter to a vote.
For the issue to appear on the ballot, the city would have to file with the board of elections by the state deadline of Aug. 7.
Almost a week later, on July 24, Smith and McDonald filed motions seeking a temporary restraining order and a preliminary and permanent injunction.
“Nelsonville’s legislative authority and its members refused or erroneously failed to submit an initiative petition which was presented with a legally sufficient petition or failed to make a prompt determination on the form of the petition within the time period defined in the Nelsonville City Charter,” the July 24 filing states.
The court filings name the city itself and members of Nelsonville City Council. Members Tony Dunfee and Opha Lawson are listed as “unofficial” members of council, despite a court of appeals ruling that found they are valid council members.
As of July 18, the city wasn’t sure if the ballot initiative could go forward because of contradictions between the charter and other legal precedents, as the Independent previously reported.
Smith, McDonald and their attorney Daniel Klos argue that the city has put them “in the impossible position of trying to gain the initiative rights granted by the Ohio Constitution.”
According to Article X of the Nelsonville City Charter, any group of five qualified voters may commence a local initiative by first notifying the clerk of council via a written statement of their intent to circulate and file initiative petitions, in accordance with state law.
The clerk then “shall promptly inform the Council of the committee’s [i.e., initiative petitioners’] intent,” the charter states. The clerk has 10 days after receiving an initiative petition to tell both its committee and the council if the petition met requirements.
“If the [initiative] petition is found to be sufficient, Council shall pass an ordinance at its next regular meeting that the issue be placed on the ballot in accordance with Ohio law,” the charter states. If the petition is found deficient, petitioners have 30 days to correct it.
Clerk of Council Susan Harmony received a notice of intent for the ballot initiative on May 28. She distributed the notice to the council on June 10.
According to Smith, the Athens County Board of Elections certified the petition on June 27, having found that 180 of the 207 signatures collected were valid. (The Independent has verified this information with the board.) However, the council has not passed an ordinance to place the issue on the ballot.
City Law Director Jonathan Robe last suggested the city’s judiciary committee discuss a 2015 ordinance on ballot initiatives, to clear up legal confusion in regards to ballot initiative procedure.
He explained in a July 8 letter to Klos that because Ordinance 32-15 set city legal opinion, “appropriate action by City Council would be required for any change from that legal position.”
A judiciary committee meeting has not yet been announced.
Ordinance 32-15 cites discrepancies between court decisions and the charter provisions. It also states that the 2015 ballot initiative to abolish the charter was invalid because the petition did not “have a reasonable transition period and procedure.” (The 2024 ballot initiative does contain language regarding elections and the government transition period).
In their July 18 court filing, Smith and McDonald argue that “the law director’s opinion on this matter has been completely eviscerated” by a state supreme court decision.
In their subsequent filing, they argue that “The Law director makes the totally unsupported legal argument that the Nelsonville Charter can be amended by an ordinance (32-15) of Nelsonville Council.”
Smith and McDonald, in their July 18 petition to the court, also asked for damages, including “costs, expenses and reasonable attorney fees” and “any other relief as the court deems just and proper pursuant to Ohio Revised Code.”
Voters approved the city charter in November 1994. It went into effect on Jan. 1, 1995.
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.
Update: Typos have been corrected, links have been added to the story and the BOE verified a document after initial publication.
Let us know what's happening in your neck of the woods!
Get in touch and share a story!
