Ohio Supreme Court rules in favor of Secretary of State Husted in mandamus action involving oil and gas ballot initiative

On September 16, 2015, the Ohio Supreme Court handed down a per curiam opinion — a victory for both Secretary of State Jon Husted, who was represented by Bricker, and the oil and gas industry — in State ex rel. Walker et al. v. Husted, Slip Opinion No. 2015-Ohio-3749.

At issue was Secretary of State Husted’s decision to uphold protests against the placement of county charter petitions on the ballot in Medina, Fulton and Athens counties. The three county charter petitions sought to, among other things, create a series of “Community Rights” and “Prohibitions Necessary to Protect Rights,” which made it unlawful to: (i) engage in any new exploration for gas or oil; (ii) site equipment (including pipelines) to support extracting oil and gas; (iii) dispose, process or produce water or other waste resulting from gas and oil extraction; or (iv) extract any water from within the county for oil and gas production or export water from the county for commercial use. Secretary Husted sustained the protests on two grounds — that the petitions did not create an alternative form of government as required by Ohio law and that the petitions unlawfully conflicted with the state’s exclusive authority to regulate oil and gas development in Ohio.

In a 6-1 per curiam decision, the Ohio Supreme Court affirmed Secretary of State Husted’s decision based on the failure of the petitions to satisfy the fundamental requirements in Article X, Section 3 of the Ohio Constitution. According to the Court, Ohio law gives the Secretary of State the discretion to determine whether county charter petitions satisfy certain procedural requirements but does not allow for a pre-election determination of a petition’s constitutionality based on case precedent. Specifically, the county charter petitions failed to: (i) “provide the form of government of the county”; (ii) “determine which of its officers shall be elected”; and (iii) identify “the manner of [the officers’] election.”

Because of the technical nature of the Court’s decision, however, the debate is not over regarding the validity (and constitutionality) of county charter petitions targeting oil and gas development in Ohio. Still, this decision provides both Secretary of State Husted and the oil and gas industry with a significant victory by keeping these three county charter petitions off the ballot in November 2015.