State ex rel. Varnau v. Wenninger, 2012 Ohio 224

Background

Wenninger has served as Brown County sheriff since January 2001, after elections in 2000, 2004, and 2008.
The board of elections certified Wenninger’s qualifications for each sheriff’s candidacy in those elections.
In 2008, Varnau (an independent candidate) protested Wenninger’s candidacy for sheriff; the board denied the protest for multiple reasons, including not being filed by a member of the appropriate party.
Varnau sought mandamus to compel the board to accept the protest; the trial court dismissed, and the court of appeals affirmed the dismissal.
In 2009, after Wenninger’s election victory, Varnau filed a complaint in the court of appeals for a writ of quo warranto to oust Wenninger and place Varnau in office.
On remand, the court of appeals denied the writ and Wenninger’s summary-judgment motion; costs were taxed to Varnau, but no attorney fees were awarded to Wenninger.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Varnau is entitled to quo warranto to oust Wenninger for the present term	Varnau contends Wenninger lacks present qualifications under R.C. 311.01(B).	Wenninger argues the challenge to past terms is moot and only the present term matters.	Writ denied; challenge tied to current term, prior terms moot.
Whether the quo warranto action is barred by timeliness or laches	Varnau should be able to challenge Wenninger’s qualifications notwithstanding prior terms.	Delays in challenging Wenninger’s eligibility were prejudicial; laches bars relief.	La ches and timing bar relief; action not timely and barred.
Whether attorney fees should be awarded to Wenninger on appeal	Not applicable; no request for fees under statute made by Wenninger.	R.C. 309.13 authorizes fees when a taxpayer’s action triggers certain conditions and the prosecuting attorney fails to act; here those conditions were not met.	No attorney fees awarded; American rule applies.

Key Cases Cited

State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240 (2011-Ohio-2939) (entitlement to quo warranto requires showing current office and relator's entitlement)
State ex rel. Myers v. Brown, 87 Ohio St.3d 545 (2000) (quo warranto relief may be decided on entitlement to office even if action challenging current term)
State ex rel. Newell v. Jackson, 118 Ohio St.3d 138 (2008-Ohio-1965) (challenge to appointment must occur before probationary period ends)
State ex rel. Wilmot v. Buckley, 60 Ohio St.3d 273 (1899) (limitations for quo warranto actions; focus on current term)
State ex rel. Fogle v. Carlisle, 99 Ohio St.3d 46 (2003-Ohio-2460) (statutory time limits for quo warranto actions)
Blankenship v. Blackwell, 103 Ohio St.3d 567 (2004-Ohio-5596) (diligence required in election-related actions; laches may bar relief)
State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158 (2008-Ohio-706) (utmost diligence required in election cases; laches may bar action)
State ex rel. Landis v. Morrow Cty. Bd. of Elections, 88 Ohio St.3d 187 (2000) (election challenges and timing considerations)
State ex rel. Huron Cty. Prosecutor v. Westerhold, 72 Ohio St.3d 392 (1995) (qu o warranto action timing in close proximity to appointment)
State ex rel. Paluf v. Feneli, 100 Ohio App.3d 461 (1995) (appellate considerations in quo warranto actions)
State ex rel. Carver Sheriff v. Stankiewicz Sheriff, 101 Ohio St.3d 256 (2004-Ohio-812) (election-related qualifications and timing in sheriff elections)
State ex rel. Lorain v. Stewart, 119 Ohio St.3d 222 (2008-Ohio-4062) (oral argument denial appropriate when briefs suffice)