HB 6 case: Referendum questions before the Ohio Supreme Court

Larry Limpf

With the Ohio Supreme Court dismissing a lawsuit over a state-wide referendum effort that would have repealed House Bill 6 and its provisions benefiting nuclear plants in Ohio, attention now turns to whether the court will decide a related case.
The supreme court announced recently it was dismissing the dispute between FirstEnergy Solutions and Ohioans Against Corporate Bailouts, saying the case lacked “…a current controversy for which it has jurisdiction to decide.”
FirstEnergy had filed the suit to stop OACB from pursuing signatures for a referendum to let voters decide if HB 6 should become law. The bill reorganizes the state’s energy policies and provides about $1 billion over seven years for nuclear plants operated by FES. Supporters of the bill argued that it included a tax increase and according to the state constitution was exempt from a referendum.
“The decision by the Ohio Supreme Court is a victory for Ohio’s electric customers and recognizes the attempted referendum on HB 6 is over. Those opposed to the bill were unable to gather the requisite number of signatures to initiate a referendum, therefore there is no longer a need for the court to rule on the case. HB6 allows the Davis-Besse and Perry nuclear plants to continue providing 90 percent of Ohio’s carbon-free power, in addition to substantial employment and economic benefits for the state.” Tom Becker, a spokesman for FirstEnergy Solutions, said.
Gene Pierce, a spokesman for OACB, also saw a win in the decision.
“The Ohio Supreme Court decision correctly rejected FirstEnergy Solutions' argument that HB 6's billion dollar bailout is not subject to referendum, one of many desperate and greedy FES maneuvers trying to deny Ohioans' right to vote on bad legislation,” he said. “The argument was ridiculed from the first time it was aired in public and this legal proceeding was a waste of the Ohio Supreme Court's time and taxpayers' money.”
In its announcement, the supreme court also said the decision doesn’t impact another pending case involving the OACB, which had filed suit in U.S. District Court, arguing that a 90-day deadline to gather signatures for the referendum – and how the deadline was being interpreted – was a restriction on free speech.
In October, U.S. District Judge Edmund Sargus, Jr. ruled OACB’s challenge of the 90-day period should be placed before the state supreme court and he certified five questions to the state court.
The 90-day window for OACB opened July 23 when Gov. Mike DeWine signed HB 6 and filed it with the secretary of state, giving the coalition until Oct. 22 to submit 265,774 signatures to the secretary of state.
On July 29, the group filed a required initial petition with 1,000 signatures and a summary of the law that voters would be deciding on the November 2020 ballot. On Aug. 12, Attorney General Dave Yost rejected the initial petition summary language, saying it contained inaccuracies, and OACB filed a revised petition on Aug. 16. Yost certified the revised version on Aug. 29 and a day later Frank LaRose, Secretary of State, informed OACB the petition contained the required 1,000 valid signatures.
That process left OACB with 52 days to gather more than a quarter million signatures, which must come from at least half (44) of Ohio’s counties. State law prevented OACB from gathering signatures while the reviews were being conducted and the group failed to meet the deadline.
“We argue that the state constitution should take precedence over legislation, and that the Ohio Supreme Court should at least clear up what ‘90 days’ means. Does it mean 90 days for the entire process, or just for collecting signatures? A motivated attorney general could run out the entire clock without ever allowing citizens to see an approved petition. That would be a truly onerous result that denies the clear intent of the Ohio constitution language guaranteeing Ohioans the right to petition,” Pierce said last week.
In a filing with the supreme court, attorneys for OACB say the first question is paramount to the case. It reads: “Whether the right to referendum set forth in …..the Ohio Constitution guarantees those circulating petitions in support of a referendum a full ninety days solely for the purpose of circulating petitions?”
A memorandum filed with the court by OACB attorneys says, “Upon the certified questions tendered by the district court, this court should accept for consideration Question 1 as that question alone involves a pure matter of law of constitutional significance.”
An amicus brief filed by the Ohio Environmental Council, Moms Clean Air Force, Ohio Citizen Action and Ohio Voice also urges the supreme court to consider the questions.
“If the Ohio Supreme Court upholds the current law, it will affirm what Ohioans now know: only with millions of dollars and an army of ironclad signature gatherers can citizens place a referendum on the ballot,” the brief says.
An amicus brief filed on behalf of Ohioans for Energy Security, which supports HB 6 and opposed the referendum effort, urges the court to not consider the questions.
“The referendum proponents tried to convince a federal court to rewrite Ohio’s Constitution and statutes—and failed. And since it is too late for the referendum proponents to file a proper state cause of action to answer the questions posed by the federal court, it is also untimely for this court to answer those questions,” it says.
As of last week, the supreme court has not stated whether it will consider the questions.
The other questions submitted to the court ask if the statutes covering the petition review process violate the state constitution by shortening a full 90 days solely to accommodate a fair review. Also, if the state constitution guarantees a petitioner 90 days to circulate petitions, are the number of days attributable to a petitioner’s own errors in submitting a referendum petition ‘credited’ to the petitioner, or deducted from the 90 days.”


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