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Toledo, Ohio & Lake Erie

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       The decision by the Ohio Supreme Court to bar a citizens’ initiative – The Lake Erie Bill of Rights – from the Nov. 6 ballot came as little surprise to Terry Lodge, an environmental attorney who helped draft the proposed initiative.

        Two days before the state Supreme Court handed down its decision on Sept. 21, Lodge, who is affiliated with the Community Environmental Legal Defense Fund, spoke to members of the group, Advocates for a Clean Lake Erie, and told them he wasn’t optimistic the court would find favor with the initiative.

        He also had little good to say about the current environmental regulatory model, calling it “fixed.”

        The CELDF drafted the bill of rights for the lake at the request of the community group, Toledoans for Safe Water, which then gathered almost 11,000 signatures to qualify the measure for the ballot.

        Had it reached the ballot and passed, it would have amended the Toledo city charter by stating the lake and its watershed have a right to exist, flourish and naturally evolve; that city residents have a right to a clean and healthy Lake Erie. A corporation or entity that violated the rights of the lake could be prosecuted and held civilly liable.

        Although the clerk of Toledo City Council authorized the Lucas County Board of Elections to put the initiative on the ballot, the board on Aug. 28 voted 4-0 to reject it on the grounds it contained provisions that are beyond the authority of the city to enact.

        Toledoans for Safe Water then filed with the state Supreme Court for a writ of mandamus to void the board of elections decision and have the initiative placed on the ballot.

        Among other arguments, the appeal for a writ contended the board of elections is “... constitutionally barred from deciding whether the proposed charter amendment conforms to a legal standard or interpretation of Ohio. The BOE is strictly limited to reviewing the sufficiency of the petition and to signature validity, and may not review or pass judgment or pass upon the initiative’s substantive terms.”

        The court, however, ruled the elections board didn’t abuse its discretion or disregard the law when it rejected the petition but the justices were divided in their opinions. Chief Justice Maureen O’Connor and justices Judith French and Mary DeGenaro concurred while justices Sharon Kennedy, Terrance O’Donnell and R. Patrick DeWine concurred in judgment only.

        Justice Patrick Fischer dissented.

        “There seems to be a ‘ruling class’ divide in the court, yet they all miss the point that the people have the right to directly legislate by initiative,” Lodge said last week. “They ignore their own long-standing precedent, which has always been to allow initiatives on the ballot, regardless of constitutionality. No one can interfere with the city council or the state legislature voting on a (potentially) illegal or unconstitutional bill. It should be the same for the people of the state, It’s clear that our government is afraid to let the people legislate by initiative.”

        In her opinion, Justice Kennedy conceded the court has made mistakes in some of its prior decisions regarding initiatives.

        “I write separately, however, to urge that we clear up the confusion created by our recent case law,” she wrote.

Marijuana case

        Environmental activists may get a boost from two men trying to have possession of marijuana decriminalized in two municipalities in Portage County, O., Lodge told members of ACLE at the group’s last meeting.

        William Schmitt and Chad Thompson filed suit in U.S. District Court for the Southern District of Ohio against the Portage County Board of Elections after the board rejected their ballot initiatives that would have eliminated fines and court costs for possession cases.

        That court agreed with them and directed the Ohio Secretary of State and county board to place the initiatives on the Nov. 6 ballot.

        “Ohio’s regulatory scheme unreasonably infringes on plaintiff’s (Schmitt and Thompson) First Amendment rights by allowing an executive board to determine disputed legal and even constitutional issues, thereby potentially blocking initiatives from the ballot, and then denying petitioners a right to review,” Judge Edmund A. Sargus, Jr. wrote in his Sept. 19 decision.

        Lodge said Monday the CELDF is filing a motion to reconsider on behalf of Toledoans for Safe Water based on the federal court ruling.

        Members of ACLE also supported the Toledo initiative effort and agreed to contribute $1,000 to Toledoans for Safe Water for signs and related costs if the measure does make it to the ballot.

       

       

 

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