State ex rel. Varnau v. Wenninger

[Cite as State ex rel. Varnau v. Wenninger, 128 Ohio St. 3d 361, 2011-Ohio-759.]
THE STATE EX REL. VARNAU, APPELLANT, v. WENNINGER, APPELLEE.
[Cite as State ex rel. Varnau v. Wenninger,
128 Ohio St. 3d 361, 2011-Ohio-759.]
Previous administrative determinations of the county board of elections did not
preclude quo warranto action — Court of appeals’ judgment denying writ
reversed.
(No. 2010-1655 — Submitted February 1, 2011 — Decided February 23, 2011.)
APPEAL from the Court of Appeals for Brown County,
No. CA2009-02-010, 2010-Ohio-3813.
__________________
Per Curiam.
{¶ 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 appellant, 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.
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{¶ 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
elections 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 “filed 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 whose declaration of candidacy the elector objects to,’
pursuant to R.C. 3513.05.” The court of appeals affirmed the dismissal, finding:
“Should Wenninger be elected and take office, [Varnau] has other legal
remedies.”
{¶ 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
2008 election, he is entitled to the office. Wenninger moved to dismiss the
complaint and attached his affidavit to the motion. The court of appeals
converted the motion for dismissal to a motion for summary judgment, Varnau
moved for summary judgment, and the parties submitted evidence.
{¶ 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 App. No. CA2009-02-010, 2010-Ohio-3813, 2010 WL
3212016.
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January Term, 2011
{¶ 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 appeals 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 R.C. 311.01(F)(2), we find that, based upon the record before us, there is no
genuine issue of material fact, reasonable minds can reach only one conclusion
which is adverse to Varnau, and Wenninger is entitled to judgment as a matter of
law.” (Emphasis added.) Varnau, 2010-Ohio-3813, at ¶ 10. In essence, the court
of appeals held that the prior administrative certifications by the board were
conclusive on the issue whether Wenninger met the applicable sheriff’s
qualifications and barred Varnau from relitigating the issue.
{¶ 11} “Res judicata, whether claim preclusion or issue preclusion,
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
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public 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 R.C. 311.01(F)(2) that Wenninger’s candidacy for sheriff met the
qualifications in R.C. 311.01(B) and (C). But this statute did not require the
board of elections to conduct a hearing resembling a judicial trial in making its
determination, and there is no evidence that it did so. “When no statute or other
pertinent law requires the board of elections to conduct a hearing resembling a
judicial trial, the board does not exercise quasi-judicial authority regardless of
whether protests have been filed.” (Emphasis sic.) State ex rel. Wright v.
Cuyahoga Cty. Bd. of Elections, 120 Ohio St. 3d 92, 2008-Ohio-5553, 896 N.E.2d
706, ¶ 8; see also State ex rel. Scherach v. Lorain Cty. Bd. of Elections, 123 Ohio
St.3d 245, 2009-Ohio-5349, 915 N.E.2d 647, ¶ 23 (court denies writ of
prohibition to prevent board of elections from placing candidate on general-
election ballot, in election to fill unexpired term of city law director who had
resigned, because board did not exercise judicial or quasi-judicial authority in
certifying name of candidate to ballot).
{¶ 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 R.C. 3501.39(A)(2), the protest filed against
Wenninger in 2004 was withdrawn before the board could exercise its quasi-
judicial authority and the protest filed against him in 2008 by Varnau was denied
because, among other reasons, Varnau lacked standing under the applicable
statute to file the protest due to the fact that he was not a member of the same
political party as Wenninger. See Zukowski v. Brunner, 125 Ohio St. 3d 53, 2010-
Ohio-1652, 925 N.E.2d 987, ¶ 9 (Republican Party member lacked standing to
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January Term, 2011
protest the candidacies of Democratic Party candidates); R.C. 3513.05 (“Protests
against the candidacy of any person filing a declaration of candidacy for party
nomination or for election to an office or position, as provided in this section, may
be filed by any qualified elector who is a member of the same political party as
the candidate * * *”). Consequently, the board also did not exercise quasi-judicial
authority for these protests.
{¶ 14} Finally, the court of appeals’ 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 their 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 conducted 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 determinations 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 cause to that court for further proceedings
based on the parties’ motions and evidence is appropriate. See, e.g., State ex rel.
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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.
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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.
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