What did the Supreme Court rule about the Ashville Data Center?

By Leisa Boley Hellwarth

In the mid-August column, we reviewed the status of the data center proposed for Ashville. The Village of Ashville had passed an agreement, as emergency legislation, to cooperate in the construction of two data centers and an accompanying natural-gas power-generating facility.

Village resident Laura McNamara-Smith and others circulated a referendum petition to repeal the data center resolution. A referendum is a direct vote by the electorate (rather than their representatives) on a proposal, law or public issue. In May, the group turned in enough valid signatures to place the referendum on the Nov. 3 ballot. The petitions were submitted to the Ashville fiscal officer to transfer to the board of elections.

In a June letter, the Village fiscal officer informed the board of elections that she was not submitting the petition because it was insufficient and invalid. She explained the resolution is not subject to referendum because it passed as an emergency measure and was an administrative action.

McNamara-Smith sought a writ of mandamus from the Supreme Court directing the Village fiscal officer to submit the petition to be on the ballot. A writ of mandamus is a court order that commands a lower court, government official, or public agency to perform a mandatory duty required by law. Meaning “we command” in Latin, it is an extraordinary remedy used only when a clear legal duty is ignored, and no other standard remedy or appeal exists.

This is where we were when the mid-August column was printed. On Aug. 7, the Ohio Supreme Court released an opinion.

The Court ruled that the Ashville fiscal officer could not refuse to certify the opponents’ petition against the data center plan because the village adopted its agreement with the company as emergency legislation. The Court ordered the Village fiscal officer to submit the petition to the board of elections for placement on the Nov. 3 general election ballot. In addition, the Court ordered Pickaway County Board of Elections to treat the delayed petition as if it had been filed on time.

The Ohio Supreme Court’s decision, however, does not ensure voters will get to decide the matter. The Court noted that the Pickaway County Board of Elections may consider whether the resolution was an “administrative action” taken by the Village and not subject to a referendum. Should the Board of Elections conclude it was a “legislative action,” the referendum would go forward.

Legislative action creates broad, binding laws and general policies for the future, while administrative action involves government agencies implementing, enforcing, and applying those laws and policies to specific cases. Legislative action formulates new laws or general policy rules. Administrative action executes, administers, and supports the details of existing laws.

The Pickaway County Board of Elections was slated to meet on Monday, Aug. 24, to decide whether the resolution was administrative or legislative action. If it is legislative, the referendum goes on the ballot. If it is administrative, this ruling will be appealed, and the case will be back in front of the Ohio Supreme Court for final determination of the resolution.

The Court was not persuaded that any emergency regarding the data center resolution existed. R.C. 731.30 defines emergency ordinances as measures “necessary for the immediate preservation of the public peace, health or safety.” Merely parroting this language is insufficient. And the Village cannot provide “after the fact” reasons for declaring an emergency that are not in the resolution.

The other emergency reason stated by the Village was to prevent unnecessary delay. An emergency resolution takes effect immediately. Other resolutions take effect within 30 days. All emergency measures are presumably designated as such because commencement of the underlying matter should not be delayed. But the resolution does not explain why waiting 30 days for the resolution to take effect would unnecessarily delay the data center project. Because the resolution fails to apprise voters of specific reasons to pass as an emergency, it is not exempt from referendum. It must be submitted to the Pickaway County Board of Elections.

While this may not be the most exciting order ever written by the Ohio Supreme Court, the content is timely. Ohio is one of the first states in the country to contemplate issues being created by the data centers. So far, we know that the Ohio Supreme Court supports a referendum, when all of the proper steps are taken. We also know that if emergency stipulations are included, there had better be serious justification and specific details.

Data centers will be the focus of litigation for many days to come.