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Nelsonville filed a lawsuit contesting last week’s election results, but appears to have dismissed it
By: David Forster
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ATHENS, Ohio (WOUB) — Three days after last week’s election, the city of Nelsonville filed a lawsuit asking a court to prevent the certification of certain candidates who won their races.
But it appears the city has now dismissed, or at least plans to dismiss, that lawsuit.
The lawsuit was filed last Friday in Franklin County Court of Common Pleas against the Ohio Secretary of State and the Athens County Board of Elections.
At issue are candidates who ran for City Council and other offices for what was supposed to be a new form of government in Nelsonville starting Jan. 1.
This change in government was called for under Issue 23, a citizen initiative passed by Nelsonville voters last November.
Under Issue 23, the city charter, which established the current government, would be abolished at the end of this year. The city would then transition to what’s known as a statutory form of government.
One of the key differences between the two is that under the statutory government, power would be split between the City Council and a mayor who is elected and independent of the council.
Under the charter, there is no mayor and instead the administration is run by a city manager who is hired by and answers to the council.
The City Council’s position is there will be no change in government because in August it voted to repeal Issue 23, saying it has the authority under the charter to overturn citizen initiatives.
After the repeal, the council tried to get the candidates running under Issue 23 removed from the ballot, but the Ohio Supreme Court refused to do this. The court did not take a position on whether the council’s repeal of the initiative was valid.
Lawsuit challenges certification
Once the election was over, the city filed its lawsuit asking the Franklin County court to prohibit the Issue 23 candidates who won their races from being certified. Candidates who win an election cannot take office until the results are certified.
The city argued in its lawsuit that Issue 23 election results “are unlawful and there is no lawful basis under which the Ohio election authorities may certify the statutory election results for a now-defunct form of government.”
However, on Thursday evening, the Nelsonville city attorney indicated that the city was going to voluntarily dismiss its lawsuit. He sent an email to two attorneys with the state attorney general’s office, which represents the secretary of state in litigation, and to an attorney with the Athens County prosecutor’s office, which represents the Athens County Board of Elections in litigation.
Attached to the email was a notice of dismissal signed by Jonathan Robe, the city of Nelsonville’s attorney. It is not clear whether this dismissal notice has been filed with the court yet. It is not under the case records on the court’s website, and an employee in the court clerk’s office told WOUB Friday afternoon she was not aware of any filing.
WOUB reached out to Robe to find out when the dismissal notice was or would be filed, and to ask why the city was dismissing its lawsuit one week after filing it, but did not receive a response before this story was published.
Another lawsuit challenges the repeal
In the meantime, a lawsuit filed before the election by one of the Issue 23 candidates seeks to overturn the council’s repeal of the initiative. The lawsuit argues the council has deprived Nelsonville residents of their constitutional right to choose their own form of government.
Because state law and the state constitution do not provide a method for abolishing a city charter, it appears the only way to do this is by initiative, and in this case the initiative process under the Nelsonville charter.
But if the City Council can repeal an initiative it doesn’t like, it’s unclear how Nelsonville residents can abolish the charter and choose a different form of government if the council objects.
The council’s position is that Issue 23 was seriously flawed because it did not adequately provide for the transition from one government to the next.
Whatever happens with the lawsuit seeking to overturn the repeal, any decision will likely be appealed and the case will drag on. In the meantime, if the Issue 23 candidates who won are certified, it’s unclear what happens next.
The council’s position is there is no new government for them to take over on Jan. 1. But it’s also unclear who would continue to run the city under the charter. The terms of all the current council members end Nov. 30, and no one ran for a full council term under the charter.
Four people were elected for a December-only council seat under the charter, which was created to address the gap between when the current council seats expire and what was to be the start of the new government in January.
Seven candidates were elected to full council terms under Issue 23, enough to fill all council seats. Also elected under Issue 23 were a mayor, president of council, auditor and treasurer.
If the Issue 23 candidates are certified, it’s possible they could take legal action to try and claim their positions. This could result in a situation where it’s unclear as of Jan. 1 who is running the city, which would not only create confusion but also potentially lead to even more litigation.