[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Walker v. Husted, Slip Opinion No. 2015-Ohio-3749.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2015-OHIO-3749
                  THE STATE EX REL. WALKER ET AL. v. HUSTED.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
           may be cited as State ex rel. Walker v. Husted, Slip Opinion
                                No. 2015-Ohio-3749.]
Elections—Mandamus—Initiative—Proposed county charter—Protests against
        petitions sustained—Scope of secretary of state’s authority under R.C.
        307.95(C)—Secretary of state did not abuse discretion by invalidating
        petitions on basis that proposed charters did not set forth form of
        government as required by Article X, Section 3, Ohio Constitution—Writ
        of mandamus compelling placement of proposed charters on ballot denied.
(No. 2015-1371—Submitted September 10, 2015—Decided September 16, 2015.)
                                    IN MANDAMUS.
                                  ________________
        Per Curiam.
        {¶ 1} Electors in Medina, Fulton, and Athens counties circulated and filed
petitions to adopt charters in their respective counties.          The proposals were
                               SUPREME COURT OF OHIO




intended for placement on the ballots for the November 3, 2015 general election.
Ohio Secretary of State Jon Husted sustained protests against the three petitions.
The relators1 seek a writ of mandamus to compel Husted to reverse his decision
and compel placement of the charter measures on the November ballots. We deny
the writs.
Background
        {¶ 2} On June 24, 2015, a petition for the submission of a proposed county
charter was submitted to the Fulton County Board of Elections. Substantially
similar charter petitions were circulated and submitted in Athens and Medina
counties. Copies of the three charter petitions are attached as exhibits to relators’
complaint.
        {¶ 3} After the respective boards of elections certified the petitions to the
secretary of state’s office, protests were filed against all three measures. On
August 13, 2015, Husted upheld the three protests, invalidated the petitions, and
ordered that the charter proposals shall not appear on the ballot.
Procedural history
        {¶ 4} Relators commenced this expedited election case on August 19,
2015. We granted leave to intervene to Joanne Dove Prisley and Mark Overholt,
protesters from Athens and Medina counties, and they timely filed merit briefs.
We also permitted the Fulton County protesters, Charles Saunders, R.J.
Lumbrezer, and Roy Norman, to intervene, but they did not file briefs.
        {¶ 5} The court received four amicus briefs in support of Husted, from (1)
the Ohio Oil and Gas Association and Ohio Gas Association, (2) the Ohio Farm
Bureau Federation, Athens-Meigs Farm Bureau, Fulton County Farm Bureau, and
Medina County Farm Bureau, (3) the Ohio Chamber of Commerce, Affiliated


1
 The relators are Renee Walker, John P. Ragan, Elizabeth Athaide-Victor, Katharine S. Jones,
Lynn Kemp, Douglas S. Arbuckle, Austin Babrow, John Howell, Richard McGinn, and Sally Jo
Wiley.




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                                  January Term, 2015




Construction Trades of Ohio, and the American Petroleum Institute, and (4) the
County Commissioners Association of Ohio.
       {¶ 6} Relators filed a reply brief on September 8, 2015. The matter is now
fully briefed and ripe for resolution.
Summary of the issues
       {¶ 7} In his letter sustaining the protests, Husted offered two reasons for
invalidating the petitions. First, he asserted that the petitions fail to create an
“alternative form of government” as required by R.C. 302.02 because they do not
provide for the election or appointment of a county executive or, in fact, for any
meaningful change in the structure of county government. Second, he claimed
that the substantive prohibition on high-volume hydraulic fracturing (“fracking”)
in the proposed charters conflicts with the state’s exclusive authority to regulate
oil and gas operations in Ohio.
       {¶ 8} Relators dispute both of Husted’s conclusions on the merits. But
more fundamentally, they assert that Husted exceeded his authority by making a
final decision on the substantive legality of the proposed charters. The case
therefore requires us to determine the scope of Husted’s reviewing authority
under R.C. 307.95(C).
The scope of the secretary’s authority
       {¶ 9} When a protest is made against a petition proposing the adoption of
a county charter, the board of elections must deliver a copy of the protest to the
secretary of state, who, within ten days, “shall determine the validity or invalidity
of the petition and the sufficiency or insufficiency of the signatures.”         R.C.
307.95(C). Husted argues that this language confers upon him discretionary
authority to determine all aspects of the petition’s “validity,” without limitation.
       {¶ 10} We begin our analysis with an examination of comparable
language elsewhere in the Revised Code. R.C. 731.28 requires city auditors and
village clerks to “certif[y] the sufficiency and validity” of initiative petitions.




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Those municipal officials have limited discretionary authority concerning matters
of form, but not matters of substance. State ex rel. N. Main St. Coalition v. Webb,
106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 30. A village clerk
may only determine the sufficiency and validity of a petition based on what is
evident on the face of the petition. State ex rel. Lange v. King, ___ Ohio St.3d
___, 2015-Ohio-3440, ___ N.E.3d ___, ¶ 11.
       {¶ 11} The same language appears in R.C. 3501.11(K), which confers
statutory authority upon county boards of elections to review, examine, and
certify “the sufficiency and validity of petitions.” R.C. 3501.11(K). But we have
held that a board of elections has greater discretion to inquire into the sufficiency
of a proposed ballot measure than municipal officials do. State ex rel. N. Main St.
Coalition at ¶ 30.      Unlike municipal officials, the boards of elections have
statutory   authority   to   conduct   quasi-judicial   protest   hearings.      R.C.
3501.39(A)(2); State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 140 Ohio
St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 48.
       {¶ 12} The secretary’s statutory authority to inquire into a charter
petition’s “validity” is at least as broad as that of the boards of elections, a point
underscored by the fact that R.C. 307.95(C) expressly permits the secretary to
“conduct hearings.” But we have never held that the authority of the secretary or
of the boards is without limits.
       {¶ 13} Election officials serve as gatekeepers, to ensure that only those
measures that actually constitute initiatives or referenda are placed on the ballot.
For example, the right of referendum does not exist with respect to a measure
approved by a city council acting in an administrative, rather than legislative,
capacity. Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d
539, 697 N.E.2d 181 (1998), paragraph two of the syllabus.                Because a
referendum on an administrative matter is a legal nullity, boards of elections have
not only discretion, but an affirmative duty, to keep such items off the ballot.




                                          4
                                January Term, 2015




Ebersole at ¶ 30.     It necessarily follows that the boards have discretion to
determine which actions are administrative and which are legislative.
       {¶ 14} Likewise, a board of elections has discretion to determine whether
a ballot measure satisfies statutory prerequisites to be a ballot measure. State ex
rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-
Ohio-5362, 840 N.E.2d 582, ¶ 39, 50-55 (board of elections did not abuse its
discretion in determining that levy-repeal petition was unauthorized by statute,
which authorized ballot measures only for certain levy decreases).
       {¶ 15} But this authority to determine whether a ballot measure falls
within the scope of the constitutional power of referendum (or initiative) does not
permit election officials to sit as arbiters of the legality or constitutionality of a
ballot measure’s substantive terms. We agree with the holding in State ex rel.
Schultz v. Cuyahoga Cty. Bd. of Elections, 50 Ohio App.2d 1, 361 N.E.2d 477
(8th Dist.1976), that R.C. 3501.11 vests the board of elections with authority to go
beyond the face of the petition in determining validity, id. at 5, and that “[t]he
substantive limitation is only that the board of elections has no power to
determine that an issue should not be placed on the ballot because if passed it
would be unconstitutional or otherwise illegal.” Id. at 5-6.
       {¶ 16} An unconstitutional proposal may still be a proper item for
referendum or initiative. If passed, the measure becomes void and unenforceable
only when declared unconstitutional by a court of competent jurisdiction. Until
then, the people’s power of referendum remains paramount. This conclusion is
consistent with our rule that we “will not consider, in an action to strike an issue
from the ballot, a claim that the proposed amendment would be unconstitutional if
approved, such claim being premature.” State ex rel. Cramer v. Brown, 7 Ohio
St.3d 5, 6, 454 N.E.2d 1321 (1983).
       {¶ 17} Husted urges us to defer to his broader interpretation of R.C.
307.95(C), which would effectively give him discretion to prejudge the legality or




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constitutionality of the substance of a petition. We decline to do so because his
interpretation is not reasonable. State ex rel. Myles v. Brunner, 120 Ohio St.3d
328, 2008-Ohio-5097, 899 N.E.2d 120, ¶ 26 (court need not defer to secretary of
state’s unreasonable interpretation of election law). Husted’s construction of the
statute would lead to absurd results.
       {¶ 18} Husted’s interpretation of R.C. 307.95(C) would permit him to
disqualify ballot initiatives before they are submitted to the electorate based on his
legal opinion of their constitutionality. Challenges to his decisions would then
come before this court in mandamus, and the question would be whether the
secretary abused his discretion. As is well established, abuse of discretion means
more than an error of law or of judgment. Sivit v. Village Green of Beechwood,
L.P., 143 Ohio St.3d 168, 2015-Ohio-1193, 35 N.E.2d 508, ¶ 9.              Rather, it
“implies an attitude * * * that is unreasonable, arbitrary, or unconscionable.”
Ojalvo v. Ohio State Univ. Bd. of Trustees, 12 Ohio St.3d 230, 232, 466 N.E.2d
875 (1984). In close cases, therefore, we might very well be compelled to find
that the secretary reasonably disqualified a ballot measure, in the exercise of his
discretion, even if we, in the exercise of our constitutional duties, would deem the
measure constitutional.     In that scenario, the voters would be denied the
opportunity to vote on a constitutional ballot measure, and decisions of
constitutional interpretation would be made by the chief elections official, rather
than the supreme court of the state.       This cannot be the result the General
Assembly intended when it enacted R.C. 307.95(C).
Legal analysis
       {¶ 19} With these foundational principles set forth, this case is easily
resolved. First, Husted rejected the petitions on the ground that the charters
unconstitutionally interfered with the state’s exclusive authority to regulate oil
and gas operations. The three charter provisions effectively ban high-volume
hydraulic fracking as a method of oil and gas extraction. In addition, two of the




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                                  January Term, 2015




charters prohibit (with some exceptions) new gas or oil exploration or extraction
and new extraction methods.
       {¶ 20} According to Husted, these terms are void and unconstitutional in
light of our recent decision in State ex rel. Morrison v. Beck Energy Corp., ___
Ohio St.3d ___, 2015-Ohio-485, ___ N.E.3d ___, in which we invalidated local
ordinances regulating oil and gas extraction as in conflict with the state’s sole and
exclusive regulatory authority.
       {¶ 21} We hold that R.C. 307.95(C) confers no authority upon the
secretary of state to invalidate charter petitions based upon his assessment of the
legality or constitutionality of the measure, if enacted.
       {¶ 22} However, Husted presented an alternative basis for invalidating the
charter petitions, namely, that the charters do not satisfy the threshold
requirements that define a charter initiative. Specifically, Article X, Section 3 of
the Ohio Constitution requires that every county charter “shall provide the form of
government of the county and shall determine which of its officers shall be
elected and the manner of their election.” And R.C. 302.02 mandates that an
alternative form of county government “shall include either an elective county
executive * * * or an appointive county executive.”
       {¶ 23} Article IV of the proposed charters, entitled “Form of Government
and Elections,” contains Section 4.01, “County Officers, Duties, Powers, and
Manner of Election.” It states:


               The offices and duties of those offices, as well as the
       manner of election to and removal from County offices, and every
       other aspect of county government not prescribed by this Charter,
       or by amendments to it, shall be continued without interruption or
       change in accord with the Ohio Constitution and the laws of Ohio




                                          7
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        that are in force at the time of the adoption of this Charter and as
        they may subsequently be modified or amended.


While purporting to maintain the status quo on matters of county offices, officers,
and their duties and manner of election, these proposed charters do not “provide
the form of government of the county” or “determine which of its officers shall be
elected and the manner of their election.” One must look to sources outside the
proposed charters to determine the form of government they purport to establish,
and therefore they do not satisfy the legal prerequisites.
        {¶ 24} We hold that it was within Husted’s discretion to determine that the
proposed charters were invalid because they did not set forth the form of
government, which is the sine qua non of a valid charter initiative, and to
invalidate the three petitions on that basis.
        {¶ 25} Finally, we note that once again, the relators in an expedited
election case have failed to submit affidavits that comply with S.Ct.Prac.R.
12.02(B)(2). Affidavits in original actions must be made on personal knowledge.
The ten verification affidavits in this case are all made “to the best of my
knowledge, information, and belief.” Such affidavits are insufficient. State ex
rel. Esarco v. Youngstown City Council, 116 Ohio St.3d 131, 2007-Ohio-5699,
876 N.E.2d 953, ¶ 15-16. This defect serves as an alternate basis for our decision.
                                                                       Writ denied.
        O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH,
JJ., concur.
        PFEIFER, J., concurs in judgment only.
        O’NEILL, J., dissents.
                                 _________________
        James Kinsman and Terry J. Lodge, for relators.




                                           8
                              January Term, 2015




        Michael DeWine, Attorney General; Bricker & Eckler, L.L.P., Kurtis A.
Tunnell, and Anne Marie Sferra, for respondent.
        Michael M. Hollingsworth, for intervening respondent Joanne Dove
Prisley.
        The Law Firm of Curt C. Hartman and Curt C. Hartman, for intervening
respondent Mark Overholt.
        Vorys, Sater, Seymour & Pease, L.L.P., Lisa Babish Forbes, Aaron M.
Williams, and John K. Keller, urging denial of the writ for amici curiae Ohio Oil
and Gas Association and Ohio Gas Association.
        Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, Kathleen
M. Trafford, and Kevin J. Kelley, urging denial of the writ for amici curiae Ohio
Chamber of Commerce, Affiliated Construction Trades of Ohio, and American
Petroleum Institute.
        Chad A. Endsley, Leah F. Curtis, and Amy M. Milam, urging denial of the
writ for amici curiae Ohio Farm Bureau Federation, Athens-Meigs Farm Bureau,
Fulton County Farm Bureau, and Medina County Farm Bureau.
        Peck, Shaffer & Williams, Thomas A. Luebbers, and Michael T. Dean,
urging denial of the writ for amicus curiae County Commissioners Association of
Ohio.
                              _________________




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