Brown County Sheriff's qualifications challenged (Quo Warranto)

Varnau ran as an Independent in the 2008 election for sheriff. Prior to the election, he challenged Wenninger's qualifications to run. However, Ohio laws do not allow an Independent to protest a Republican or Democrat's candidacy, Varnau said. Varnau filed for a writ of mandamus to force the Ohio Board of Elections to accept his protest but a legal battle resulted in a court ruling that Varnau had a future remedy in quo warranto.

A writ of quo warranto can be sought against a person who "usurps, intrudes into, or unlawfully holds or exercises" a public office, according to Ohio Revised Code.

This is very interesting. Why hasn't a writ of quo warranto been filed against Obama?

If he has to legally prove his qualifications in just one state our national nightmare with this arrogant brat would end.
.

All those tickets Sheriff Wenninger wrote...undone. All his prisoners set free. Yup...this election will soon be “undone”.

It has been filed against Obama. More than one time I believe. But, like all the other lawsuits, no one has standing. Only God apparently has standing in our courts against this President/s

A person must either have served two years in law enforcement at or above the level of a corporal or have a two-year degree from a post-secondary institution that is accredited by the Ohio Board of Regents.

Wenninger attended a technical school in the mid-1980s, Technichron Technical Institute. The institute was not accredited by the Ohio Board of Regents. At issue in a criminal case filed against Wenninger was whether he knew it did not meet the requirements and whether he committed the crime of election falsification. Wenninger was acquitted of the charges.

Sounds like a clear case of bureaucratic Credentialism in Ohio. He was not "approved" by the Ohio Board of Regents. Such a crime. // sarcasm

NOW, FOR THE REST OF THE STORY!

This quo warranto case and this brand new story are connected:

http://browncountypress.com/main.asp?SectionID=1&SubSectionID=1&ArticleID=10519

Wenninger was never qualified to be a candidate for sheriff all the way back to the 2000 election, same for the 2004 election and 2008 election. Varnau, an attorney and police officer, was an Independent candidate running for sheriff against Republican Wenninger. Varnau tried to file a protest against Wenninger’s candidacy, but the Ohio Election laws did not allow an Independent to challenge a Democrat or Republican, but a Democrat or Republican could challenge an Independent’s candidacy.

So, Varnau filed in common pleas for a writ of mandamus to force the Board of Elections to accept his protest as timely and valid on constitutional grounds of equal protection and due process. The magistrate hearing the petition granted the mandamus. The prosecutor sought to set aside the magistrate’s judgment and a Republican judge was brought in to decide. That judge denied the mandamus based upon the reasoning that Varnau had a “future” remedy in quo warranto. I guess the judge (God) knew Varnau would live long enough through the general election when he made that decision even though Varnau’s constitutional rights definitely had already been violated by Ohio election law as an Independent candidate.

Varnau appealed that decision to the Ohio 12th District Court of Appeals and they affirmed the lower court decision. Then Varnau asked for a reconsideration of their affirmation based upon a month earler Ohio Supreme Court decision on another mandamus case, where the Supreme Court said that if a person is entitled to a mandamus writ you can’t deny issuing it based upon reasoning that he may have a “future” remedy available to him. The 12th stuck to their decision because Varnau had no right of appeal to the Supreme Court, and seeing as how the 12th District Court had four Republicans on that bench, and the Supreme Court had seven Republicans on its bench, every seat on every court from top to bottom only has Republican judges, no Democrats or Independents. Varnau did not appeal that decision, but proceeded on to the November election.

Varnau lost that election by about 5000 votes, and then he filed for that quo warranto in the 12th District Court of Appeals. Varnau sought to get that Wenninger criminal case record unsealed by the trial court of Judge Gusweiler [a future defendant now in the hyperlinked article above] claiming the sealing violated the constitutional right of the public’s need and right to know versus the privacy rights of Wenninger a public official.

Judge Guswelier, a good Republican friend of the Republican “Sheriff” Wenninger denied the motion but failed to inform Varnau or his attorney, and Gusweiler had the Clerk’s Office seal his decision in with Wenninger’s sealed criminal case record from 2003. Varnau and his attorney did not find out that a decision been made on their motion until Varnau received an e-mail from the new prosecutor wherein she said she knew Judge Gusweiler denied his motion five days after he did it, but that e-mail was received by Varnau about a month or more after the original decision was sealed by the clerk.

Upon finding out a decision was made more than 30 days ago, Varnau asked the Clerk for a copy of that decision and was told he’d have to go to the court to get a copy. Varnau was given a new “second decision” entry instead of the original. Varnau then filed a mandamus request with the 12h District to force the release of the original decision, along with a delayed appeal request and an appeal, plus a bias and prejudice claim against Gusweiler with the Chief Justice of the Supreme Court, since he had no idea when the original was decided. That was done to protect Varnau’s due process rights under normal procedure, which was obviously not being followed in Gusweiler’s trial court.

Varnau never was afforded a hearing, nor were there any filings from any interested parties in response to the filed motion, just Judge Gusweiler deciding that since Varnau was not a party listed in the sealing statute who could get it unsealed, his motion was denied. Judge Gusweiler never did address the constitutional issue in the motion, which was the only issue identified in the motion filed in his court.

Finally the appeal was heard on January 11, 2010. The oral arguments can be heard on this hyperlink page:

http://www.prohold.com/varnauforsheriff/quowarranto/quo_warranto_case__ca20090210.htm

Nine weeks later the 12th District affirmed Judge Gusweiler’s decision, saying that Varnau did not bring up a constitutional claim in the trial court. Yet, the last four decisions made by Judge Guwweiler that were appealed to the 12th District were remanded back to Gusweiler for further proceedings because they were done wrong, but not Varnau’s appeal. Again, Varnau has no right of appeal to the seven-seated Republican judges on the Supreme Court.

The interesting thing in this scenario is that Wenninger’s criminal trial court judge, Robert Ringland, had said at Wenninger’s trial that the State had made it’s case with respect to Wenninger’s lack of qualifications to be a candidate, and Ringland sent the case to the jury to decide if Wenninger intentionally falsified his election affidavit where he swore he was a qualified candidate under penalty of perjury, a felony five under Ohio election laws.

Ringland sealed the criminal case at the request of Wenninger’s attorneys after Wenninger was found “not guilty.” Under the sealing statute and current case law, the judge is supposed to weigh the privacy rights of the defendant against the public’s right to the record. Which party has the more important right to the record dictates whether it gets sealed or not. Wenninger’s file remains sealed to this day.

Judge Ringland won his election to the 12th District Court of Appeals on November 4 2008. Republican Ringland now sits on the 12h District with the other four Republican judges, but did not sit for the oral arguments on January 11th. So, you have the 2003 criminal trial court judge now sitting on the Appeals Court, which court denies the unsealing of the criminal court record that was sealed by the same new fellow judge that sat over Wenninger’s 2003 trial.

Does anyone see any problems, potential conflicts of interest, or the appearance of potential conflicts of interest present in these facts? We here in Brown County smell some, at least those of us who support Varnau’s legal efforts to expose the illegalities that have been taking place within our county for over eight years, those of us who are good friends of his and know this case thoroughly as it very slowly progresses onward.

We smell something rotten in southwest Ohio, and it isn’t just the Rumpke unsanitary landfill dump at the northeast corner of Georgetown, Ohio.

It appears that the two-party system becomes “one party” when third-party candidates enter the fray. Our country needs more Independent candidates to run for office. Real INDEPENDENTS that will follow the Constitution and laws over party politics!

(Varnau wrote this for Varnau)

Wenninger was never qualified to be a candidate for sheriff all the way back to the 2000 election

From what I read it was an issue of who accredited his school. Most states rely on experience. Generally Sheriff's are political in nature and the staff maintains continuity. I hate credentialism, why should some group of "educators" decide who is qualified to hold office. I am still not convinced by your explanation, although it is a long and detailed explanation.

The Ohio Revised Code provision, back in 2000, read as follows, Section 311.01(B):

§ 311.01. Election and qualifications of sheriff

(A) A sheriff shall be elected quadrennially in each county. A sheriff shall hold office for a term of four years, beginning on the first Monday of January next after the sheriff’s election.

(B) Except as otherwise provided in this section, no person is eligible to be a candidate for sheriff, and no person shall be elected or appointed to the office of sheriff, unless that person meets all of the following requirements:

(1) The person is a citizen of the United States.

(2) The person has been a resident of the county in which the person is a candidate for or is appointed to the office of sheriff for at least one year immediately prior to the qualification date.

(3) The person has the qualifications of an elector as specified in section 3503.01 of the Revised Code and has complied with all applicable election laws.

(4) The person has been awarded a high school diploma or a certificate of high school equivalence issued for achievement of specified minimum scores on the general educational development test of the American council on education.

(5) The person has not been convicted of or pleaded guilty to a felony or any offense involving moral turpitude under the laws of this or any other state or the United States, and has not been convicted of or pleaded guilty to an offense that is a misdemeanor of the first degree under the laws of this state or an offense under the laws of any other state or the United States that carries a penalty that is substantially equivalent to the penalty for a misdemeanor of the first degree under the laws of this state.

(6) The person has been fingerprinted and has been the subject of a search of local, state, and national fingerprint files to disclose any criminal record. Such fingerprints shall be taken under the direction of the administrative judge of the court of common pleas who, prior to the applicable qualification date, shall notify the board of elections, board of county commissioners, or county central committee of the proper political party, as applicable, of the judge’s findings.

(7) The person has prepared a complete history of the person’s places of residence for a period of six years immediately preceding the qualification date and a complete history of the person’s places of employment for a period of six years immediately preceding the qualification date, indicating the name and address of each employer and the period of time employed by that employer. The residence and employment histories shall be filed with the administrative judge of the court of common pleas of the county, who shall forward them with the findings under division (B)(6) of this section to the appropriate board of elections, board of county commissioners, or county central committee of the proper political party prior to the applicable qualification date.

(8) The person meets at least one of the following conditions:

(a) Has obtained or held, within the four-year period ending immediately prior to the qualification date, a valid basic peace officer certificate of training issued by the Ohio peace officer training commission or has been issued a certificate of training pursuant to section 5503.05 of the Revised Code, and, within the four-year period ending immediately prior to the qualification date, has been employed as an appointee pursuant to section 5503.01 of the Revised Code or as a full-time peace officer as defined in section 109.71 of the Revised Code performing duties related to the enforcement of statutes, ordinances, or codes;

(b) Has obtained or held, within the three-year period ending immediately prior to the qualification date, a valid basic peace officer certificate of training issued by the Ohio peace officer training commission and has been employed for at least the last three years prior to the qualification date as a full-time law enforcement officer, as defined in division (A)(11) of section 2901.01 of the Revised Code, performing duties related to the enforcement of statutes, ordinances, or codes.

(9) The person meets at least one of the following conditions:

(a) Has at least two years of supervisory experience as a peace officer at the rank of corporal or above, or has been appointed pursuant to section 5503.01 of the Revised Code and served at the rank of sergeant or above, in the five-year period ending immediately prior to the qualification date;

(b) Has completed satisfactorily at least two years of post-secondary education or the equivalent in semester or quarter hours in a college or university authorized to confer degrees by the Ohio board of regents or the comparable agency of another state in which the college or university is located . . .

[Note: the following was added on December 9, 2003, by then-State Rep. Tom Niehaus (R) specifically to make Wenninger’s educational credentials satisfactory to qualify in 2004]

. . . or in a school that holds a certificate of registration issued by the state board of career colleges and schools under Chapter 3332. of the Revised Code.

These provisions in the Code have been consistent for many years. This last new part was intentionally added to try and correct Wenninger’s lack of credentials for the 2004 election. If you wish, and have time, to read more on this, go to:

http://www.prohold.com/varnauforsheriff/index.html

and click on: “The Senator Niehaus Affair - Decide for yourself the truth.”

It’s not the credentials that have ever been a problem for everyone else elected to sheriff to meet prior to filing for candidacy. It’s the lack thereof, knowing ahead of time that such is required to qualify. If all but one can do it, why should the law be changed just for one person to qualify after the fact? Not fair to the others who put the time and effort in to qualify. One can complain about the hurdles to qualify for something, but why are the hurdles lowered just for one over all the rest? Is that fair, not to mention, constitutional?

Mr. Wenninger’s diploma was issued from “a school that holds a certificate of registration issued by the state board of career colleges and schools under Chapter 3332. of the Revised Code,” on October 23, 1987.

How many hours are required for a diplomas and/or degree, etc., from each type of school is defined in the Ohio Administrative Code, section 3333 for the Ohio Board of Regents schools/colleges, and in 3332 for State Board of Career Colleges and Schools.

Ohio Board of Regents diplomas have to consist of a MINIMUM of 90 quarter hours and/or 60 semester hours. Career colleges and schools diplomas are defined as having LESS THAN 90 quarter hours and/or 60 semester hours - BY LAW.

Mr. Wenninger graduated from high school on June 8, 1986, and from his technical school October 23, 1987. There is no way you can get 90 quarter hours or 60 semester hours in between these two dates.

Mr. Wenninger got this diploma in 1987, and was relying on it as sufficient educational credentials to satisfy ORC 311.10(B)(9)(b) in 2000.

In the Ohio Revised Code section for the State Board of Career Colleges and Schools, it specifically states under section 3332.02 EXCEPTIONS, that Chapter 3332 does not apply to: (B) courses, schools, or colleges under ORC Section 1713 [which is the Ohio Board of Regents statute provisions], or (C) schools, colleges, technical schools, or universities established by law or chartered by the Ohio Board of Regents. Mr. Wenninger’s diploma was awarded to him by a Section 3332 school that held a certificate of registration under that Code section.

Of course one has to be able to at least read and calculate some things to figure out whether or not he is qualified for a specific job. If he cannot determine from the specific details of what he has juxtaposed the requirements that are mandatory and require “strict compliance” under the election laws, as described in the Code provisions, does that make it appear that maybe some extra schooling might be required before applying for the job?

So, just where do you draw the line between law and politics? Does politics trump the law, or the other way around? If politics is allowed to trump the law, then who ever has the bigger mob wins. THAT, is not the way our country is supposed to work! At least that is what I have personally been taught and led to believe all these 60+ years.

There is a legal “out” in cases like this for the courts and the system called the “de facto officer” doctrine.

In short, what it essentially says is that what was done by an officer who is not legally an officer, but actually looks, acts, and is viewed like one by the perps, the courts will let stand all those arrests and other actions, after the usurping officer is removed, as long as there was no prejudice involved.

Courts are not going to overturn what has been done for years just because someone defrauded the system for his own benefit, as long as there was no underlying prejudice involved in the arrests, etc.