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The lawsuit filed last week against Nelsonville City Council has been withdrawn as the plaintiff pursues a different legal strategy
By: David Forster
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ATHENS, Ohio (WOUB) — A Nelsonville resident has dropped the lawsuit he filed last week against the City Council, the latest development in an ongoing legal saga over conflicting efforts to change the city’s government.
Greg Smith, who filed the lawsuit on Friday, said he dropped the case Thursday because his attorney has suggested a different legal strategy.
The lawsuit was an attempt to keep off the May primary ballot a proposed amendment to the city charter that would repeal Issue 23, a ballot initiative approved by Nelsonville voters in the November election.
Smith fought a monthslong legal battle with the city last year to get Issue 23 on the ballot. The initiative set in motion a process to return the city to the form of government it had 30 years ago.
This includes electing a new council and a mayor, who would run the city’s day-to-day operations instead of a city manager appointed by the council.
The City Council three weeks ago voted to put the proposed charter amendment on the ballot, which along with repealing Issue 23 would set in motion its own process to elect a new council and a mayor.
Some council members say Issue 23 is unworkable because it didn’t provide enough direction on how to make the transition to a new government.
Smith’s attorney, Dan Klos, said although the lawsuit was withdrawn six days after it was filed, it served a purpose.
Under a legal doctrine known as laches, a lawsuit can be dismissed if a court determines the plaintiff did not move quickly enough to take action.
Klos said the lawsuit was filed in part to “get something in front of the court to avoid any argument that we did not act with timeliness or due diligence.”
In this sense, the lawsuit was sort of a toe in the door, in case Smith wants to take legal action later.
The decision to withdraw the lawsuit was also a strategic move for a couple of reasons, Klos said.
First, the City Council has filed an appeal with the Ohio Supreme Court over its loss in the case Smith filed last year to get Issue 23 on the ballot.
If the court decides to take up that appeal, Klos said, he will need to focus his legal efforts there.
“That’s a significant use of time and expertise,” he said.
Second, rather than fight a legal battle to keep the proposed charter amendment off the May ballot, Klos said, it would cost much less to simply try to defeat it.
Issue 23 passed with more than 70 percent of the vote. Klos said there’s good reason to think many of these same voters will oppose the charter amendment, which Smith argues is an attempt to do an end run around Issue 23.
“If it’s defeated, we don’t have to pay a dime,” Smith said. “We wouldn’t have to file any more lawsuits.”
If the charter amendment passes, Smith said, he can go to court then.
Overturning the results of an election is something a judge might be very hesitant to do, but Klos said he believes there is a way to challenge “a vote of the people to do away with Issue 23 if it comes to that.”