By: Timothy Kays
The Michindoh Aquifer has been a subterranean battleground since Artesian of Pioneer (AOP) owner, Ed Kidston announced plans to drill into it and place high volume pumps in place to extract water for commercial purposes. Many small organizations have voiced their opposition to the venture, but eventually the grassroots Williams County Alliance stepped to the fore to present a united challenge to AOP. When their efforts to go through legal channels ended without success, their next step was to pose the formation of a charter government in Williams County, which would promote the standard of ‘home rule’.
Town hall meetings were held by the Alliance throughout the county to detail the purpose for the charter, and give people the chance to sign a petition to put the charter initiative to a county-wide referendum. Upon submission, that petition was turned down by the Williams County Board of Elections, which touched off a long running legal battle, which on September 3 saw a writ of mandamus filed by the Alliance turned down by the Ohio Supreme Court.
Scott Towers, a member of the Williams County Board of Elections, has heard more than an earful of everything from questions to accusations of malfeasance and conspiracy on the part of his Board. In a sit-down discussion on the history of the matter, Towers made it clear that the members of the Williams County Board of Elections made their decisions based solely upon the established law of the land. For the express purpose of making the matter fully clear to the voters of Williams County, he discussed the timeline that led to the decision of the Board, and the legal wranglings that ensued ever since.
“On June 26,” Towers began, “…the petitioners brought their petition to the Board of Elections, and submitted it for the county charter. We had ten days from that point to be able to determine whether it was valid or not. So we had to schedule a meeting within ten days and actually, initially, we had scheduled to decide on it the same time as we were scheduled to do other petitions. Then they actually came back and pointed out that there’s actually a different law on how you handled county charters, and it needed to be done within ten days. So when they brought that to us, our office recognized that we needed to correct that, and we did. So we scheduled it…for July 8; it was when we had the meeting to be able to determine whether it was a valid petition or not.”
“In hindsight,” he continued, “…most of the people didn’t realize when they brought it that our job was to do more than just count signatures. They thought the petition is filed…you figure out how many signatures are on there. If there’s enough, it’s valid, and if it’s not there, it’s not valid. Well, the law actually states…Revised Code Section 3501.38 actually instructs us for the county charters and initiatives, that we have to determine whether it’s outside of the scope of a county to enact or not. Meaning there’s things within this charter that they try to do, that is not something that county can do. A county can only do so many things and has so much authority by state law, and if anything was outside of that, then we were to determine it was invalid. That’s what we found; based on our legal counsel, we found that it was invalid, which they have the ability to challenge.
Rightfully, anytime there’s a decision made, it’s good that there’s a way to be able to appeal it.” The first legal challenge was about to get underway. “And so they appealed to the Court of Common Pleas here in Williams County,” Towers said. “That was their first step. They did that immediately following. We actually got it in the middle of the night, the night of our decision. So we had three days to file the initial paperwork and with the court, and then the court actual court date ended up being…I think July 14, if I remember right. The decision was made on the 17th. So they appealed to the Court. The Court heard both sides and said, ‘Nope; the Board of Elections made the correct decision’.”End of story…right? Well, not exactly.
Towers went on, “So then…in the law, they have two options. When the Board makes a decision that they want to appeal, they can either appeal to the court locally, OR they can appeal to the Secretary of State’s office. And so after they appealed to the court and lost, they tried to come back and appeal to the Secretary of State’s office through us. You can’t do that; you choose one or the other. What they could have done is appealed that decision of the local court, to the next level of court. But what they tried to do was go back and go another route, which it says in the law (and we were directed by the Secretary of State), ‘No, you can’t do this. You can’t pick one, and when they refuse it go the other route.”
“So they tried it,” he continued, “…and we said, ‘No, you can’t do this.’ A couple days later, they asked us again to send it and we said, ‘No, you can’t do this by law.’ So then, a few days later after that, I think it was August 9…almost two weeks after that, they filed what was called a mandamus action with the Supreme Court. Essentially, that is done when you want to bypass the other appeals courts and try to get to the Supreme Court because it’s an emergency situation. There’s a timeline that needs to be met, so they’re trying to do it quickly. Basically in their decision, the Supreme Court said that they didn’t take the correct path. They didn’t go to the next court of appeals, and they didn’t believe that it was an emergency situation because they took 23 days from the time the court locally made the decision, to file the writ of mandamus. So they said, ‘This is not an emergency situation. You didn’t take the correct path.’ So they basically declined to hear their decision, and the standing decision now is what (Williams County Common Pleas Court) Judge Steltzer had decided originally.”
The Alliance did not go into this fight alone. The Community Environmental Legal Defense Fund (CELDF) has been the guiding hand for the Williams County Alliance through the county charter initiative, and this is not their first go-around in this arena. In fact, according to Towers, their success rate in getting these charter government measures passed is rather threadbare. “It is extremely low,” he said. “They’ve never had one that has been passed in a bill that is lawful in the State of Ohio…none of these county charters, and I think there’s been eight. They’ve also had municipal charters meet the same fate. They’re involved with the Lake Erie Bill of Rights (LEBOR) that was on the ballot and passed, and is currently being litigated. I think it’s probably likely to meet the same fate. Yeah, not a real good batting average. Unfortunately, the people that worked so hard to get all these signatures were probably not aware of that. “
“And that’s one thing that really I empathize with: the people that came to present us with that petition, thinking this was something that was going to happen, and then found out that they helped write a document that simply was not a lawful document. The people that wrote it knew that there were issues with the document, because they’ve met the same fate many times. One of the things that we’ve seen since the court decision, they’ve tried to spin it as ‘just a technicality’; it was, ‘thrown out on a technicality’. But if you look at Judge Steltzer’s decision, it was not on a technicality. It was the entire document, and in his view it was outside of the scope of what a county is allowed to do. There’s places within the charter itself that it basically says that if there’s a conflict between what this charter says and what state or federal law says, that the charter is the winner, and the charter is the one that rules. Well, that’s not how law works…and I’m sure the people that worked so hard for it, had they known that this was the intent of the people that wrote it to upend state and federal law from a county level, they wouldn’t have wasted their time doing it.”
On another provocative subject, there are still those who claim that the members of the Williams County Board of Elections are just the latest to line their pockets with bribe money from Ed Kidston. With a laugh, Towers said, “I got paid by Ed Kidston the exact same amount as what the Supreme Court did. I mean, it’s ridiculous. If you listen to the people that would say that, every county official, state official, Supreme Court justice is apparently all in Ed Kidston’s back pocket. That’s absolutely just frankly absurd, and people that know me know that. I’m a person that is concerned about doing what is right, and whether someone I know was involved or not, it doesn’t matter. I’d have to do what’s right by the law, and that’s what we did on July 8.”
To those who cast no stones of disparagement, political or otherwise, but sincerely want to protect the Michindoh Aquifer from the plans of AOP, Towers says, “I think they just need to understand that the direction that was taken was not within the law. And if you’re trying to protect the aquifer, which extends beyond the borders of Williams County and beyond the State of Ohio, you can’t simply just enact a county charter and think that’s going to do it. First of all, the county does not control groundwater; the state regulates groundwater. So if you’re going to make something that’s going to make a change within the State of Ohio, you need to go TO the State of Ohio. But if you’re trying to actually enact something that prevents people from doing something in another state, there’s no way it could be done from the county level. So they just need to seek a different avenue if that’s what their goal is, because it can’t be done at the county level.”
Towers continued, “I’m empathetic with the people that, when they came to the Board of Elections with a charter, they had no idea that this was something that had been tried unsuccessfully in many other counties. If they were, then they were told the same thing that’s we’re being told today: that it was simply a technicality that it was thrown out on, and not that the entire thing was just unlawful outside of the authority of the state. And so I understand that, and for the people that were really upset, I understand at the time where they were, and I would just encourage everyone to read the charter for themselves. Do a little research into who the CELDF are, what their goals are and what their outcome have been, and anytime that something like this comes up again, please take the time to read the charter to make sure you know what it is before you sign a petition.”
“In fact, I’ve been told by many people that they weren’t even shown a charter; they were just asked to sign a petition. They didn’t know there was a charter involved, and the ones that were were told, ‘Sign this, and this will stop Ed Kidston.’ Well, there was no explanation given how in the world that a county petition or county charter would stop a well in Fulton County. So that’s the thing that I think we would really want people to understand, is that this never had a chance to stop that, and the people that wrote it knew it didn’t, but were using the good people of Williams County to try to get across their agenda.”
Timothy can be reached at email@example.com
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