In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
Update: This column was published Thursday, Sept. 18. On Friday morning, Sept. 19, the City of Nelsonville filed a motion for reconsideration with the Ohio Supreme Court. The city is asking the court to address the underlying issue of whether the council’s Ordinance 54-25, passed Aug.11, repealed the provisions of Issue 23, a ballot initiative that established a new statutory government as of Jan. 1, 2026.
Nelsonville says that the ordinance demands that the charter government continue and should be a basis for mandating the Athens County Board of Elections to remove from the ballot the people running for statutory offices.
Nelsonville says that if the court does not address this issue, “The practical result is that on January 1, 2026, the Nelsonville agencies—including the police department—will likely be unsure as to who to take direction from: the current Charter City Council or the government that is on the ballot in November.” It is expected that the Athens County Board of Elections will file a similar motion for reconsideration. Stay up to date with the case here.
We have been anxiously awaiting clarification from the Ohio Supreme Court and the ultimate decision on the form of government that will prevail for Nelsonville. Will it be a continuation of the charter government, or will it be a new statutory form of government, mandated by about 70% of the voters when they passed Issue 23 last November?
Well, Wednesday, Sept. 17, the 14-page opinion finally came from the high court and the state supreme court punted on that core issue, leaving the whole governmental situation up in the air and murkier than ever. That underlying issue is still unresolved.
The state supreme court said it would not remove people who have been certified by the Athens County Board of Elections from the ballot, leaving both statutory candidates and charter candidates on the November ballot.
But, after being elected, which group will take power over Nelsonville?
We don’t know, because the Ohio Supreme Court did not address the fundamental issue of whether Ordinance 54-25, passed Aug. 11 by the Nelsonville City Council, repealed the provisions of Issue 23, which established a new statutory government as of Jan. 1, 2026.
The state supreme court limited its decision to addressing whether the board of elections should be ordered to decertify the statutory candidates and remove them from the ballot. The Ohio Supreme Court said, “No.”
I’m going to jump into the state supreme court’s decision/non-decision and try to explain this complex situation in as simple terms as possible.
Laches
One of the respondents who opposed the actions of the current Nelsonville Council, Andrea Nicole Thompson-Hashman, argued that the current council waited too long before passing the ordinance repealing the outcome of Issue 23 and the city’s claims before the Ohio Supreme Court should be dismissed.
If a party sits on rights and doesn’t bring them to the state supreme court’s attention in a timely fashion, that is called laches. Basically, it means that a party has waited too long to act.
The state supreme court did not address the delay to pass the original repeal ordinance but instead looked at the time periods after the ordinance was passed.
The Ohio Supreme Court court said that Nelsonville filed the action in the Ohio Supreme Court just two days after passing the repeal ordinance and that was not a delay.
The Ohio Supreme Court said the timing of Nelsonville’s repeal ordinance is not relevant to the issues of whether statutory candidates should remain on the ballot.
Prohibition
The current Nelsonville City Council asked the Ohio Supreme Court to “decertify, or otherwise remove,” the slate of statutory candidates on the November ballot.
The state supreme court was asked for an order ”prohibiting” the statutory candidates from being on the ballot.
One of the reasons, cited by Nelsonville, for a prohibition order is that the Athens County Board of Elections should have conducted a protest hearing on the statutory candidate slate.
That protest hearing would have been a quasi-judicial hearing with witnesses and testimony.
The Athens County Board of Elections held no such hearing.
The state supreme court said the board of elections was not required to do so and therefore, Nelsonville is not entitled to a writ of prohibition to prohibit the statutory candidates from being on the ballot.
Mandamus
The City of Nelsonville asked the Ohio Supreme Court to “mandate,” or order, the Athens County Board of Elections to remove the statutory candidates from the ballot for November.
The state supreme court said:
To obtain a writ of mandamus, Nelsonville must establish, by clear and convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.
The state supreme court then focused on whether the board of elections “abused its discretion or clearly disregarded applicable law by refusing to remove the statutory offices from the ballot.
The Ohio Supreme Court said that it did not need to address the viability of the repeal ordinance because the city did not establish any statutory duty mandating that the Athens County Board of Elections remove the statutory slate from the ballot.
The state supreme court noted:
Nelsonville’s request for relief fails for a more basic reason: Mandamus enforces clear duties imposed by a legislative authority … and Nelsonville points to no statutory duty requiring, or even authorizing, a board of elections to remove elections for statutory offices with certified candidates from the ballot.
The state supreme court found the cases that Nelsonville cited as precedent for a writ of mandamus were not similar enough to the current situation to carry any weight.
The state supreme court also said:
Here, Nelsonville does not point to a statute or legal precedent requiring, or even authorizing, a board of elections to remove races from the ballot when some of the candidates for those races were certified to the ballot over six months earlier. As the board aptly writes, ‘[w]hat [Nelsonville] asks is so unique that it is not only something that seems to be a matter of first impression before the state supreme court, but it does not appear to be something the State Legislature contemplated when creating statutory duties for the board.’ The board is correct, and we may not create that duty.
In short, because the City of Nelsonville failed to establish the legal requirements necessary for a writ of prohibition and for a writ of mandamus, the state supreme court said it need not decide the validity of the repeal ordinance; it punted.
What’s next
The validity of the repeal ordinance passed by the council is still in question. It appears that the Ohio Supreme Court will not address that issue at this time.
We still don’t know if Nelsonville will be a statutory or charter city on Jan. 1, 2026.
I fully expect legal action to be initiated in the Athens County Common Pleas Court to determine that issue. The question is, in my mind, who will file the action?
- Will it be the City of Nelsonville, trying to get the state supreme court to retain the charter?
- Will it be supporters of Issue 23 and the slate of statutory candidates, trying to have a court ruling that they will be in charge after Jan. 1, 2026?
- Or will it be the city’s insurance carrier, trying to get the state supreme court to determine which council it may lawfully contract with for insurance coverage?
Also, regardless of who loses at the common pleas level, the losing party will have a right to one appeal to the Ohio Fourth District Court of Appeals.
And who knows? This issue might work its way back to the Ohio Supreme Court, where it all began.We will keep you informed along the way. If you have specific questions about this case or other legal issues, you may email me at hodson@ohio.edu and I will try to answer your inquiries in future columns.
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