THE STATE EX REL. VARNAU, APPELLANT, v. WENNINGER, APPELLEE.
No. 2010-1655
Supreme Court of Ohio
February 23, 2011
128 Ohio St.3d 361, 2011-Ohio-759
Submitted February 1, 2011
{¶ 10} Therefore, on the board‘s recommendation, we accept the consеnt-to-discipline agreement. For violations of DR 1-102(A)(6) and 9-102(A), Prof. Cond.R. 1.15(a), 8.1(b), 8.4(d), and 8.4(h), and
Judgment accordingly.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek Beckman, Assistant Disciplinary Counsel, for relator.
Thomas J. Simon, pro se.
{¶ 1} This is an appeal from a judgment entered by the court of appeals denying a writ of quo warranto to oust appellee, Dwayne Wenninger, from the office of sheriff of Brown County and to order that aрpellant, Dennis J. Varnau, be entitled to the office. Because the court of appeals erred in holding that previous administrative determinations of the Brown County Board of Elections precluded the quo warranto action, we reverse the judgment and remand the cause to the court of appeals for further proceedings.
Facts
{¶ 2} Wenninger has been the Brown County sheriff since January 2001, having won elections in 2000, 2004, and 2008. The board of elections certified that he met the applicable qualifications to be a sheriff‘s candidate for each of the elections, but it never made a decision on the merits of his qualifications following a protest contesting his candidacy.
{¶ 3} In 2004, Sandra Martin protested Wenninger‘s candidacy for sheriff, but she withdrew the protest.
{¶ 4} In 2008, Varnau, an independent candidate for sheriff, filed a protest against Wenninger‘s candidacy for sheriff. The board of elections denied the protest because, among other reasons, it was not “filed by a member of the appropriate party.”
{¶ 5} Varnau then sought a writ of mandamus to compel the board of еlections to accept as valid the protest he filed against Wenninger‘s candidacy. The Brown County Court of Common Pleas dismissed the mandamus action because, among other reasons, “the extraordinary remedy of mandamus is not appropriate in that there is a legal remedy at law through a quo warranto action” and Varnau‘s protest was not “filеd by a ‘qualified elector who is a member of the same political party as the candidate and who is eligible to vote at the primary election for the candidate whоse declaration of candidacy the elector objects to,’ pursuant to
{¶ 6} In February 2009, following the election victory by Wenninger, Varnau filed a complaint in the court of appeals for a writ of quo warranto to oust Wenninger from the office of sheriff and to place Varnau in that office. Varnau claimed that because he was the only lawful sheriff‘s candidate at the November
{¶ 7} On August 16, 2010, the court of appeals granted Wenninger‘s motion for summary judgment and denied the writ. State ex rel. Varnau v. Wenninger, Brown Apр. No. CA2009-02-010, 2010-Ohio-3813, 2010 WL 3212016.
{¶ 8} This cause is now before the court upon Varnau‘s appeal as of right.
Legal Analysis
{¶ 9} “[Q]uo warranto is the exclusive remedy by which one‘s right to hold a public office may be litigated.” State ex rel. Deiter v. McGuire, 119 Ohio St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 20, quoting State ex rel. Battin v. Bush (1988), 40 Ohio St.3d 236, 238-239, 533 N.E.2d 301. “For a writ of quo warranto to issue, ‘a relator must establish (1) that the office is being unlawfully held and exercised by respondent, and (2) that relator is entitled to the office.‘” State ex rel. Newell v. Jackson, 118 Ohio St.3d 138, 2008-Ohio-1965, 886 N.E.2d 846, ¶ 6, quoting State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138, 141, 630 N.E.2d 708.
{¶ 10} The court of aрpeals determined that “because the Board previously determined [that] Wenninger satisfied the necessary requirements to be elected Brown County Sheriff in 2000, 2004, and 2008 as statutorily required by
{¶ 11} “Res judicata, whether claim preclusion or issue preсlusion, applies to quasi-judicial administrative proceedings.” State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, 905 N.E.2d 1210, ¶ 29; State ex rel. Tremmel v. Erie Cty. Bd. of Elections, 123 Ohio St.3d 452, 2009-Ohio-5773, 917 N.E.2d 792, ¶ 16. We have defined quasi-judicial authority as “the power to hear and determine controversies between the рublic and individuals that require a hearing resembling a judicial trial.” (Emphasis added.) State ex rel. Wright v. Ohio Bur. of Motor Vehicles (1999), 87 Ohio St.3d 184, 186, 718 N.E.2d 908.
{¶ 12} On three separate occasions, the board of elections certified pursuant to
{¶ 13} Moreover, although a board of elections does exercise quasi-judicial authority in denying protests filed pursuant to statute, see, e.g., State ex rel. Murray v. Scioto Cty. Bd. of Elections, 127 Ohio St.3d 280, 2010-Ohio-5846, 939 N.E.2d 157, ¶ 31, and
{¶ 14} Finally, the court of аppeals’ reliance on our prior holding that “[b]oards of elections are obligated to weigh evidence of a candidate‘s qualifications, and courts should not substitute thеir judgment for that of the board,” State ex rel. Kelly v. Cuyahoga Cty. Bd. of Elections (1994), 70 Ohio St.3d 413, 414, 639 N.E.2d 78, to support its holding is also misplaced. Kelly and the other cases cited by the court of appeals for this proposition were all cases in which the boards of elections conduсted quasi-judicial hearings upon properly filed protests. See also State ex rel. O‘Beirne v. Geauga Cty. Bd. of Elections (1997), 80 Ohio St.3d 176, 685 N.E.2d 502; State ex rel. Herdman v. Franklin Cty. Bd. of Elections (1993), 67 Ohio St.3d 593, 621 N.E.2d 1204. That did not happen here.
{¶ 15} Therefore, the court of appeals erred in holding that the board‘s previous administrative determinаtions barred Varnau from challenging Wenninger‘s qualifications to remain sheriff in his quo warranto case. These determinations were not res judicata as to these issues, because the board did not exercise quasi-judicial authority in rendering them.
{¶ 16} Based on the foregoing, we reverse the judgment of the court of appeals denying the writ of quo warranto. Because the court of appeals failed to address the substance of Varnau‘s claim for extraordinary relief based on its erroneous rationale, a remand of the causе to that court for further proceedings based on the parties’ motions and evidence is appropriate. See, e.g., State ex rel. Sawicki v. Lucas Cty. Court of Common Pleas, 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 32. We deny appellant‘s request for oral argument.
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellant.
Gary A. Rosenhoffer, L.L.C., and Gary A. Rosenhoffer; and Patrick L. Gregory, for appellee.