Complaint: FILED FEBRUARY 27, 2009
Motion to Dismiss
Entry Converting Motion to Dismiss to Motion for Summary Judgment
Relator's Opposition to Motion to Dismiss
Entry Granting Opposition Memorandum
Entry Granting More Discovery Time
Motion for Summary Judgment
Respondent Partial Reply to Motion for Summary Judgment
Motion to Strike Partial Reply
Respondent Summary Judgment Brief
Relator's Reply to Respondent's Memorandum In Opposition To Relator's Motion for Summary Judgment
Notice to Take Deposition
Respondent Request for Protection Order from Deposition
Relator Opposition to Protection Order on Deposition
Deposition Transcript of Wenninger: August 27, 2009 @1400 hrs - Part 1 - Part 2 - [.wmv video files] [VERY LARGE FILES]
Documentation related to Deposition:  Sandra Martin Letter - OPOTA documents - Ripley, OH documents - Wenninger SO Termination
Relator Motion for 2nd Stay
Entry Granting 2nd Stay
The Quo Warranto case is on hold until after the oral argument hearing on January 11, 2010, at the 12th District Court of Appeals in Middletown, OH, on the appeal to unseal Wenninger's criminal court case record.  The filings on this appeal are as immediately follows:
Appeal Brief-09-29-09
Wenninger's Brief-10-23-09  [Note that Wenninger's Brief was due by October 2, 2009, according to the Court's Order.]
Reply Brief-10-30-09
Oral Arguments before 12th District Court of Appeals on January 11, 2010   See: Original Motion to Unseal Filed - May 15, 2009
12th District Court of Appeals Decision, March 15, 2010 - Affirmed Common Pleas Court Ruling
No more effort will be expended at this time to unseal the trial criminal court record.  Now the schedule reverts back to the Quo Warranto case which is supposed to be finalized to the court 30 days after March 15th.  
Notice of Supplemental Authority - June 21, 2010
Respondent Reply to Supplemental Authority - June 24, 2010
My Response to Respondent Reply to Supplemental Authority - June 28, 2010
Summary Judgment Hearing - July 20, 2010 - 12th District Court of Appeals - Judges: Young, Bressler, Hendrickson

"[A] board of elections * * * is a quasi-judicial body when it considers protests." State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 306, 686 N.E.2d 238.  No official protest against Mr. Wenninger's candidacy in 2000, 2004, or 2008, ever made it to the Board for an official quasi-judicial determination of Mr. Wenninger's qualifications. 

NOTES: The Board of Elections only acts in a quasi-judicial capacity when it is confronted with an official protest of an individual's qualifications to be a valid candidate for the office he/she seeks.  Normally, where no official written protest is filed with the Board of Elections, the Board of Elections operates under the law and only reviews what is submitted to it, to make sure the documentation is complete, etc.  In the matter of sheriff candidates, the Ohio Revised Code mandates that the administrative judge of the common pleas court verify the past employment and residential history, and check to see if the candidate has any past criminal history that would preclude him/her from being a valid candidate.  The judge then reports his findings to the Board for their review.  The Board also reviews the petitions submitted by the candidate to make sure there are enough valid signatures to qualify, and accepts the affidavit signed under penalty of perjury [5th degree felony] that said candidate is qualified to be a valid candidate for sheriff.  If all the paperwork is in order, the Board certifies the candidate's application and places his/her name on the ballot.

Attorney Rosenhoffer claimed before the court in person and filings that I should have petitioned for a writ of prohibition simultaneously with my petition for the writ of mandamus to force the Board of Elections to accept my protest of Mr. Wenninger's candidacy as timely and valid.  In order for anyone to have standing to petition for a writ of prohibition, three elements have to be present: 1.) the Board of Elections and its members are about to exercise quasi-judicial power; (2) the exercise of that power is unauthorized by law; and, (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law.  When I filed for the writ of mandamus: 1.) the Board of Elections did not have any protest pending before it, therefore, it had not, and was not going to act in a quasi-judicial capacity; 2.) the Board of Elections, by law, is empowered to place a candidate's name on the ballot after they certify that the candidate's submission of paperwork [petitions with a valid number of signatures, sworn affidavit candidate meets the requirements, and administrative judge's input] is in order: and, 3.) I had available to me, at that time, the remedy of writ of mandamus.   

1.) There never was an official written protest filed with the Board of Elections against Mr. Wenninger in the 2000 election.

2.) Mr. Wenninger was indicted for falsification of his election affidavit in December 2002, indicating that he was a valid candidate, when in fact, he lacked the requisite educational credentials to qualify.  Thus, in 2003 there was a criminal trial to determine whether Mr. Wenninger INTENTIONALLY falsified his election affidavit.  He was found "not guilty" of intentional falsification, but this did not change the fact he was still  unqualified to be a valid candidate, as he still lacked the proper educational credentials required by the Ohio Revised Code to qualify.

3.) Sandra Martin, K.O. Martin's wife, filed a written protest against Mr. Wenninger's candidacy in 2004.  She was not aware at that time that State Senator White and then-Representative Niehaus had the qualifications changed to reduce the educational credentials required, down to the same level as that which Mr. Wenninger possessed from the Technichron Technical Institute, to make him a technically legitimate candidate.  This emergency legislation was passed specifically to make Mr. Wenninger's candidacy fit the new Ohio Revised Code provisions as amended.  When Sandra Martin found out about this deliberate change in required qualifications that made Mr. Wenninger "legitimate," she withdrew her petition.  Her protest was not "dismissed" by the Board, it was withdrawn prior to any action by the Board. 

4.) In 2008, after the primary and my certification as an Independent candidate, I filed a written protest of Mr. Wenninger's candidacy, but the Board was not allowed by law to accept it because the Ohio Election law only allowed for a Democrat or Republican to challenge an Independent, whereas an Independent could not challenge a Democrat or Republican. 
5.) I filed with the common pleas court for a writ of mandamus to force the Board to accept my protest as timely and valid, claiming that the Ohio Election laws violated my due process and equal protection rights under both the Ohio and U.S. Constitutions.

6.) The common pleas court denied me the writ, saying that I had a future remedy in quo warranto after I lost the election in one to two months in the future.  [How they knew that I would live that long and lose the election so far in advance, I'm still trying to figure out where they got their "crystal ball."]

7.) I appealed to the 12th District Court of Appeals the denial by the common pleas court, but they upheld the lower court ruling, affirming with the same reasoning.  I filed a motion to reconsider after the Supreme Court had a few weeks earlier decided a case where it said, that if a person is entitled to a writ of mandamus, he/she cannot be denied it based upon reasoning that he/she may have a FUTURE remedy available.  They stuck with their ruling and ordered that their decision not be published anywhere. 

8.) I lived long enough and lost the general election to Mr. Wenninger, and filed for this writ of quo warranto in the 12th District Court of Appeals, the same court that affirmed that I had it available, first for that reason, second, because I have one right of appeal to the Ohio Supreme Court, if the 12th District uses some other "crystal ball" type of reasoning to deny me the writ in light of the mandatory, strict compliance laws as applied to the facts that cannot change, forever set in the concrete of history.

9.) The quo warranto case was put on hold late last year so I could pursue a motion in the common pleas court to unseal Mr. Wenninger's criminal court case file.  The common pleas court judge denied my motion and sealed the record from us so that we did not even know he had taken any action on my motion.  By the time we found out it had been denied through Jessica Little, who said in an e-mail that she had known the judge denied the motion over a month earlier but neither my attorney nor I were informed of this fact, it was then too late to appeal the ruling.  Nevertheless, we filed for another writ of mandamus to force the court to release its ruling on our motion, and a Bias and Prejudice complaint against the judge with Chief Justice Moyer.  Before the Chief Justice could rule on it, the common pleas court judge, Scott Gusweiler, released a second entry judgment, making all those steps moot.  We appealed the common pleas court decision, based solely upon a constitutional question, right smack in the middle of the motion, but the 12th District Court of Appeals affirmed the common pleas ruling, saying that we did not bring up the constitutional question in the lower court.  [Oh, well!]  No right of appeal to the Supreme Court on that one either, just like the original writ of mandamus request for the Board, so back to the quo warranto case, where we now await the 12th District's decision to grant or deny the writ.  A denial will prompt an immediate appeal to the Ohio Supreme Court.  A granting of the writ could be appealed by Mr. Wenninger to the Ohio Supreme Court. 

10.) Legally the logical outcome is extremely clear - just like reading a McGuffy reader.  But if you add extraneous catalysts into the equation, like politics, emotionalism, etc., endless hallucinogenic imaginations could never predict a final outcome.  It's just like playing chess with mandatory, strict compliance rules. 

Summary Judgment for Wenninger - August 16, 2010 - Court held that it was not going to overturn a purely fictitious Board of Elections decision, certifying Mr. Wenninger was qualified to be on the ballot, which decision can be found nowhere in the record, but supposedly, if made, was made with a clear disregard of the applicable statutes and legal provisions controlling qualifications under ORC 311.01(B)(8) and (9) at the times pertinent.  At least this time I do have one right of appeal to the Ohio Supreme Court. 

On further analysis of this decision, it's appears to be a penultimate decision that unequivocally eliminates any future quo warranto proceedings, making a petition for a writ of quo warranto action impossible in any future litigation over any sheriff candidate where a Board of Elections has certified any sheriff candidate to run for office. 

Remember, this is the same court that said I had a future remedy in quo warranto as their reason to deny me the writ of mandamus back in 2008.  Now, when I ask for the quo warranto writ in their court, they say I can't have it, and invent a "fact" out of thin air that didn't exist in the record because it never happened, and then base their Decision completely upon this manufactured "fact."  By doing this, the court avoided having to address the quo warranto writ analysis, which if done would dictate that summary judgment should be awarded to me, not Mr. Wenninger.  There is absolutely nothing in the record that would support for one second giving Mr. Wenninger a summary judgment.  The court's Decision is so far out of line with just about every procedure and law on the books, which makes me, a litigant to the proceeding, wonder what it is that makes a court come up with such a completely disconnected Decision in every way possible?   In effect, it is another denial of justice for me because I now have to spend more time and money to get this Decision thrown out.  The only saving factor along these lines is that if, and when, I get the writ granted, Mr. Wenninger, by law, owes me all the expenses I have had to spend to prove he is a usurper to get him out of office.  He was never qualified to "throw his hat in the ring" with Buddy Coburn, K.O. Martin, Don Newman, or me, in 2000, 2004, or 2008.  Same goes for 2012.  

Entry Denying Motion to Strike - August 17, 2010 -  Court did not have to rule on this year old motion to strike since they ruled on the whole case using other reasons to make their Decision.  If they had ruled on this motion, about two thirds of everything submitted by Mr. Wenninger's attorneys would have been stricken from the record. 
Motion To Vacate - August 20, 2010 - Provides reasons why summary judgment holding was in error.  If the court denies this motion and persists in holding as they have, then we go to the Ohio Supreme Court, which will probably throw the case back to the Appeals Court, telling them to do their job.  It's the way the ball bounces back and forth, unnecessarily for many reasons, but that's the way the system has evolved. 
Motion To Certify - August 20, 2010 - If the court fails to reconsider its defective judgment, then this motion asks the court to certify that its ruling is in conflict with similar case holdings in other Ohio Appeals Courts and the Supreme Court. 
Respondent Reply to Motion To Vacate and Respondent Reply to Motion To Certify - Both Filed August 24, 2010
Relator Reply to Respondent Reply to Motion To Vacate and Relator Reply to Respondent Reply to Motion To Certify - Both Filed August 31, 2010.   This is the last of the filings that will be made to the 12th District Court of Appeals.  The next filing here will most likely be our appeal to the Ohio Supreme Court, that is, unless the 12th District returns a decision on the Motion to Vacate and Certify before we file in the Supreme Court. 
Notice of Appeal to Supreme Court filed September 22, 2010.  Go to the following hyperlink to view and/or download documents filed in that case:
http://www.supremecourt.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type=3&year=2010&number=1655&myPage=searchbycasenumber%2Easp    Supreme Court Case #: 2010-1655
12th Entry Denying Motion to Vacate and Motion to Certify a Conflict - September 30, 2010.  This entry will have to be re-done because the 12th District lost its jurisdiction over the quo warranto case on September 22 when our appeal was filed in the Supreme Court.  We will have to ask for a Stay and Remand from the Supreme Court to get this decision included in my appeal of the 12th's decision on the quo warranto case. 
Supreme Court case docket with all filings in .pdf format can be downloaded here:
Ohio Supreme Court Decision - 7-0 per curiam in my favor, February 23, 2011 - Case remanded back to the 12th District for consideration of the quo warranto motions and evidence.  JUDGMENT ENTRY    
Our new filings: Withdraw Motion To Vacate - Renew Motion To Strike - Request For Oral Argument - All filed March 9, 2011, 12th District Court of Appeals
Wenninger's Reply to our Renewed Motion To Strike - Respondent's Reply To Relator's Motion To Strike - March 17, 2011
This has to be the strangest reply to any of our filings.  Note the words inside the parenthesis under the title of the document: "(and Wenninger's Renewed Motion to Strike)."  Nowhere, that is NOWHERE, in the record is there any Motion to Strike made by Respondent, or any objection to any evidence submitted by us.  In the first paragraph of this reply is the first general "shotgun-type" objection to anything submitted by us into the record.  This whole reply is mainly focused upon the two affidavits they submitted to the record, in an attempt to salvage something not directly eliminated by the Ohio Supreme Court decision February 23rd.  In any event, even if the affidavits survive our motion to strike, the substantive content of both those affidavits is absolutely contrary to the Ohio Revised Code and Ohio Administrative Code provisions that dealt with Technichron Technical Institute (TTI) as far as Wenninger's diploma supposedly being a two-year degree, and under the Ohio Board of Regents, and both affidavits are thus, thoroughly and completely rebutted by law alone. 

After reviewing all the briefs, memos, replies, and evidence, submitted by Wenninger's attorneys, in light of the Ohio Supreme Court decision, remanding the case back to the 12th District, there are only a few specious arguments left within those pages - See what's left in Respondent's Partial Reply To Summary Judgment, Respondent's Summary Judgment Brief, and Respondent's Reply To Supplemental Authority after Ohio Supreme Court decision wiped out what is in red, and specious arguments in orange.  If you remove those specious arguments, there are only a few paragraphs of opinion left proffered by Mr. Rosenhoffer and Mr. Gregory that mean nothing about anything related to the issues.  We will reply shortly, and then it will be up to the 12th District to make their decisions on the case.  If they hold against us again, we go back to the Supreme Court.  From the way the Supreme Court worded their decision, I don't think that Court expects to see this case come back to them for any reason.  We'll see what the 12th does with it this time around.

Our final filing before the 12th District Court of Appeals prior to the Court setting a date for new Oral Arguments - Relator's New Motion To Strike - filed March 29, 2011
May 11, 2011 - Arguments filed in preparation for Oral Arguments, June 14, 2011, at 1000 hrs at the 12th District Court of Appeals in Middletown, OH.  Wenninger's Brief.    Varnau's Brief.   Replies to these two briefs, if filed, are due by close of business, Monday, 16 May 2011. 
After reading Wenninger's Argument Brief, with all the specious, inadmissible, and superfluous material removed [orange lines deleting material; red calling your attention to], you get the following remaining document: Wenninger's Brief Redacted.  There were 22 pages of attachments appended to this Brief when there were supposed to be none.  Page 10 of those attachments was a letter that is not anywhere in the court record, is inadmissible under the rules of evidence, and indicates the extent to which they will go to make it look like there is some substance to their argument that the TTI diploma possessed by Wenninger satisfied the educational requirements of ORC Section 311.01(B)(9)(b).  Note the date on their submitted letter is September 24, 2002.  Note the date of an earlier letter that is in the record as one of our exhibits, sent on September 19, 2002, identical to the letter of the 24th, except for one added sentence: "During this period the school was authorized to offer diploma programs under Section 311.01.9B of the Ohio Revised Code."  SEE BOTH SEVY LETTERS.  Don't know if there is anything to it [do you?], but is seems quite odd that the Account Clerk, Marlene Sevy would send a letter to "Sheriff Dwayne Wenninger" on September 19th without that extra sentence, and then a second letter, identical to the first except for that added sentence, on September 24th, with the wrong Code number on it.  How did Ms. Sevy know anything about ORC 311.01 anyway as a Clerk at the State Board of Proprietary School Registration?  She didn't.  It's so obvious that someone prompted her to re-send another letter with this added sentence for the benefit of Mr. Wenninger.  Remember, back at this time Mr. Wenninger was looking forward to a possible indictment over his lack of educational credentials to be a valid sheriff candidate back in the 2000 election. 
Varnau Reply-05-16-11 to Wenninger's Brief.  Wenninger's Reply-05-16-11 to Varnau's Brief.  Note for those questioning: Section 3332.05 of the Ohio Revised Code referenced in Wenninger's Reply Brief on page 2, middle of the page, did not add this Ohio Board of Regents (OBR) involvement to the law until the 1989 Revised Code Supplement.  That is, not until two years after Mr. Wenninger received his TTI diploma was it possible for a for-profit school [ORC Section 3332. schools, institutes] like TTI to apply for a Certificate of Authorization (COA) from the Ohio Board of Regents [ORC Section 1913. colleges, universities] for a particular course.  In order to apply for one of these COAs to teach a particular course, a school had to have been teaching that specific course for 10 years in a specific geographic location.  If approved by the OBR, then the COA for that course in that location had to be filed with the Ohio Secretary of State to be valid.  First of all, TTI started business in 1978, and Mr. Wenninger got his diploma in 1987.  That is only 9 years, not even the 10 required to apply for a COA for Mr. Wenninger's diploma course.  Second, there never was a filing with the Ohio Secretary of State by TTI of any COA prior to TTI going out of business.  What Mr. DeGarmo was referring to was text out of a version of the Revised Code that was not contemporaneous in any way with Mr. Wenninger's TTI diploma.  This is just useless after-the-fact information inserted to deceive or confuse those superficially reading the content overtly presented.  It's just another misleading "meritless" argument "swiftly dispatched" by the facts, as Mr. Rosenhoffer would put it.  Overall evaluation of the case to date: "The Emperor has no clothes."  
Our Motion-05-18-11 to have the Court rule on current new objections in the post-appeal record by Wenninger's attorneys against our evidence which objections are way too late [waived by res judicata, etc.] to bring up under the Court rules, particularly after the record was settled prior to the appeal to the Supreme Court.  This Motion will determine just how important the 12th District Court of Appeals Rules are with respect to pending cases, or if they are just for "show" purposes, so to speak.  The Court's ruling on this Motion will clear up the existing confusion over what is admissible/inadmissible as far as evidence before the court in this case.  This is a pretty important issue prior to oral arguments scheduled for Tuesday, June 14, 2011, at 1000 hrs at the 12th District Court of Appeals. 
Tuesday morning, June 14, 2011, at the end of oral arguments, the Appeals Court more or less seemed to suggest that it may find neither side is entitled to a summary judgment.  The audio file of oral arguments will be posted here [HEARING-06-14-11] as soon as I receive the CD from the Court.  [Where the audio breaks up when the attorneys are talking, that is due to one of the judges making enough noise for his or her microphone to dominate over the microphone the attorneys have at their podium.]

Under what circumstances will a Summary Judgment be granted?

Ohio Rule of Civil Procedure 56, says, . . .
Summary judgment shall be rendered forthwith [
immediately; at once; without delay] if the pleadings, depositions, answers to interrogatories, written admissions, affidavits [all Exhibits submitted with our motion for summary judgment on August 10, 2009, were submitted under sworn affidavit], transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . .  [emphasis added]

Summary Judgment is granted if the judge finds the following:

1.      There is no genuine issue of material fact that would make a trial necessary.
In our case there are no “facts” to be determined by a jury as every fact is set in the concrete of chronological history, and thoroughly documented in the admissible evidence many times over.

2.      The party making the Motion for Summary Judgment is entitled to judgment under the law.
Just using the Ohio Revised Code and Administrative Code provisions alone, my case against Mr. Wenninger, alleging he was never legally eligible to be a candidate for sheriff, is proved solely using that “black letter” law without having to resort to any other admissible evidence in the record.

3.      The evidence demonstrates that reasonable minds can only conclude in favor of the party filing the Motion for Summary Judgment.
The only conclusion any objective mind can come to under the applicable law as applied to the facts would be that Mr. Wenninger is certainly the “sheriff that never was.”  There is no other viable outcome dictated by the law and facts available to debate.  It is that clear cut in the record.  The only way anything else could enter into the equation is outside influences having a persuasive effect greater than the law itself, like politics, power, money, etc.  If there were any legal way to deny me summary judgment or grant the same to Mr. Wenninger on the merits of the quo warranto petition, the court would have already done so.  So, the only thing the Court can do is grant summary judgment or move in a direction that just prolongs the case for whatever reason they can come up with that would legitimately support such a decision.  It’s the substantive logic in the upcoming written Court decision that will disclose the underlying proclivities of the Court with respect to their adjudication of my case.   

It’s important to remember that, when considering a Motion for Summary Judgment, the court determines whether there are any issues that need to be heard through the trial process. [There are no issues hanging out there at this time that are not already completely covered by the law, facts, and admissible evidence in the record.]  The court doesn’t weigh issues of fact. In fact, when a court considers a Motion for Summary Judgment, the judge views the evidence in a way that is most favorable to the party that has not asked for Summary Judgment. [After the motions to strike Mr. Wenninger’s “evidence” are decided, the remaining three documents left in the record in support of their arguments will be deleted from the record.  At that time there will be nothing in the record evidence-wise at all favoring Mr. Wenninger’s side, or, anything left in the record that could arguably be used to deny me summary judgment on the evidence.]  If a court can look at the facts in a way most favorable to the other party and still believes that the party asking for Summary Judgment is entitled to judgment – then the Motion for Summary Judgment will be granted and all or part of the lawsuit will be ended.

If the court is going to find it cannot grant summary judgment to either side, then the court is saying that there are still issues that need to be heard and determined at trial.  At this time there is absolutely no other identifiable issue whatsoever left that I can think of [other than through taking a psychedelic “trip”] that would have to be determined by a trial.  A decision leading to trail would just prolong the decision making process for at least a few more months.  If the process is prolonged, and if the court finds some reasoning to still deny me the writ, we would end up back in the Supreme Court on appeal.  That would take the case well into next year past the primary elections. 

If that happens, and Mr. Wenninger is the Republican Party’s candidate for sheriff again, assuming he gets past the Board of Elections protests that will be filed opposing his candidacy, then he will eventually be removed after the primary and before the general election, leaving the Republican Party without a candidate on the ballot, unless they field a write–in candidate at that time.  If the Supreme Court still has not decided the case prior to the general election, and Mr. Wenninger succeeds in winning the election again, he would still be usurping sheriff, as his police certificate legally expired January 1, 2005.  Sooner or later the quo warranto writ would issue, and Mr. Wenninger would be ousted from office either before or after the elections. 

So, the longer the case continues, the better it is from my perspective.  The Brown County Republican Party is facing a terminal Catch-22 situation no matter what avenue they chose to take at this time.  The best they could hope for is to have Mr. Wenninger step down at this time, allowing them to appoint another individual to take his place for the remainder of his term.  That action still would not affect my quo warranto case in any way whatsoever, but would prove that the Republicans have known for over 11 years that their “sheriff” candidate was not legitimate from day one.  Could anyone trust another candidate proffered by the same Republican Party hierarchy as their appointee or candidate under such circumstances?   [Both parties cannot be trusted anymore by the voting public, in my opinion.] 

If the case is prolonged, that just makes the 12th District Court look really bad in every way possible, or if the writ is granted, or Mr. Wenninger removed prior to the election, the Republicans are damned if they do, and damned if they don’t.  The outcome will still be the same no matter what action they may take at any time now, unless honest Republicans with integrity completely “clean house” of all those individuals in their party responsible for this over-a-decade-long election fraud. 

It was suggested and said by several Republicans over the past few years that, “I would never get my case through ‘THEIR [meaning Republican-dominated] courts.”  So far those statements are recorded to be 100% correct to date.

CD of HEARING audio received from 12th District Court of Appeals June 19, 2011.  [Where the audio breaks up when the attorneys are talking, that is due to one of the judges making enough noise for his or her microphone to dominate over the microphone the attorneys have at their podium.]  Note: This WAS a hearing on the merits of my quo warranto case as ordered by the Ohio Supreme Court on remand.  You will notice that the presiding Judge Hendrickson goes to great lengths explaining what is going to take place if the Court finds that neither side is awarded summary judgment.  Pay particular attention to his wording, as it seems pretty clear that is what is already planned by the judges even though going to trial is not going to add one more thing to any argument presented, except it will already have deleted the two affidavits of Spievack and Callendar from the record, leaving Mr. Rosenhoffer with no viable evidence in the record at all.  There would be absolutely no reason whatsoever to redo the same arguments all over again at trial, as everything pertinent in the case has already been presented to the Court by both sides.  The only difference in admissible evidence would be the deletion of both affidavits of Spievack and Callendar, and the e-mail from Shane DeGarmo from Ohio Board of Regents. 

Also note that presiding Judge Hendrickson refers to me as Real-ah-tor throughout the whole hearing instead of Re-la-tor.  This is "proof" that cases like this in quo warranto are relatively rare cases before the courts in general, where even an appeals court judge is so easily confused by the difference between the two words and their correct usage.  A "realtor" is a licensed agent that deals with real property sales transactions, whereas a "relator" is the party bringing the special writ petition in the position that would normally be called the "plaintiff" in a case.  I too was confused by the two words when I first started seeking the writ of mandamus in the common pleas court back in 2008, but learned real quick the difference and distinction from that point forward. 

July 12, 2011 - Wenninger's attorneys file a Motion to Dismiss, claiming that I lack standing to file a quo warranto action. 
July 15, 2011 - Relator's Response to the Court's Notice of Intent to Take Judicial Notice. 
July 18, 2011 - Our Motion to Strike their newest Motion to Dismiss.
July 22, 2011 - Wenninger's Reply to our New Motion to Strike.  This represents the final admission by Mr. Rosenhoffer that Mr. Wenninger was never qualified to be a valid candidate for sheriff.  Whether I end up taking the seat or not does not negate the fact that I had standing to bring the suit, as would any other losing candidate who would have run in the same election.  Once a quo warranto case is brought,  the legal right of the respondent to hold office is determined one way or another, even if none of the losing candidates that had standing to file a quo warranto could assume the position in the end, just like the year 1900 case [Speidel] cited by Mr. Rosenhoffer in this, his latest Motion to Dismiss.  In Speidel, none of the losing candidates could take the office because the winner died on election day, and therefore did not take office, so the incumbent would still retain the office until a special election between the remaining two losing candidates could determine between those two who would prevail to replace the incumbent. 

The problem Mr. Rosenhoffer has with his citation of case law, is that he is appealing to the reasoning contained in a North Carolina case decision.  Reasoning in North Carolina election law cases does not coincide with Ohio election law cases, particularly where there were only two candidates on the ballot and one is found to be ineligible to have been on the ballot after the election. 

Disenfranchising of voters takes place when fraud is present during the voting process.  When an ineligible candidate can get his name on the ballot in any election, that is prima facie evidence that not only did someone lie on his election petition affidavit, but that the Board of Elections failed the voters by not "catching" the fact a candidate was not eligible to be on the ballot prior to printing of the ballots.  The "loser" is the voting public that trusted those with the sworn duty as members of the Board of Elections to protect the voting public from ineligible usurpers not entitled to be on the ballot, much less hold office. 

July 27, 2011 - Our Reply to their Reply on our Motion to Strike.

This SHOULD BE the last filing prior to a Court decision, I think, depending on whether or not Mr. Rosenhoffer continues to ignore the scheduling orders and other procedural rules, not to mention the correct usage of substantive and procedural law with respect to legitimate legal foundation used in memorandums in support of motions filed. 

Some commentary on the substance of their Motion to Dismiss and Reply: One of the first things you start learning in law school, as a new student in all classes, is the up-front procedural rules involved in initiating cases.  It’s been a long time, but generally there are some basic “hurdles” one has to jump in bringing a case to court.  These are concepts called subject-matter jurisdiction, personal jurisdiction, venue, standing, mootness, political question, and statute of limitations.  Don’t think I have missed any more, but these are the BIG ones that have to be satisfied before a court will usually hear the merits of a case. 

As you can readily distinguish from our attached reply, “standing” is not “subject matter jurisdiction” by any stretch of the imagination.  Furthermore, case law shouldn’t be thrown around haphazardly like #12 shotgun shot without having some logical connection specifically aimed at the issue being addressed. 

When it comes to legal authority of state case law, Ohio Supreme Court decisions trump all lower case law decided by all lower courts in Ohio.  Case law from other states are mainly only of use when it comes to areas of law that involve brand new issues that have never been decided by Ohio courts.  Reasoning in decisions by other state courts can be used to introduce foundational legal reasoning that may be of some help to decide a unique new case never before considered in Ohio courts.  Generally, however, all lower courts in Ohio are supposed to follow the law as decided by the Supreme Court.  They don’t always do that, as evidenced by the decision from the 12th District Court of Appeals on my mandamus case. 

Nevertheless, in order for me to have forced the 12th District Court to follow, at that time, the recent Supreme Court decision that dictated “if someone was entitled to a writ of mandamus, it cannot be denied based upon the reasoning that the petitioner may have a future remedy available,” I would have had to appeal that decision to the Supreme Court.  That was the case where we asked for reconsideration of the 12ths decision based upon a Supreme Court case decided just weeks earlier to the 12ths decision on my appeal of denial of the mandamus writ by the Common Pleas Court. 

To force the 12th to follow the Supreme Court precedent, I would have had to appeal their decision to the Supreme Court.  The problem with that would have been that procedurally I only had one right of appeal from the Common Pleas Court to the Appeals Court.  I did not have a secured right of appeal to the Supreme Court from the Appeals Court on that case.  Thus, considering the case load the Supreme Court has daily, it would have been a “crap shoot” to try and get the Supreme Court to take that case, particularly since it dealt with constitutional issues, which are something the courts try to avoid like the plague [in reality], if possible.  So, the decision to not follow up on that case was made in the interest of time left to prosecute the quo warranto case to completion. 

As you can see from the dates, it has been approximately two and one-half years already on the quo warranto case, and it is still not decided by the court, when it probably should have been a year ago, at least, if the merits of the case were adjudicated like the Supreme Court ordered the Appeals Court to do on remand.

It’s been a long haul.  Don’t know when the Court will hand down a decision.  Could be today.  Doubt it.  There is, however, no other legitimate legal answer to this case other than to grant me the writ.  If the Court does not grant the writ, then we automatically go to the Supreme Court again.  

Politically, I don’t think the Republican Party can afford to have this case go on much longer, because it is already going to affect the next election cycle.  And, even though I too am ready for it to be over, it actually would be a good thing for this case to keep on going right into, and past, the primary election, with Mr. Wenninger running as the Republican candidate for Sheriff again in 2012.  It would be “priceless” to see Dwayne picked as the Republican candidate for Sheriff in the 2012 general election. Imagine the implications of that with respect to his qualifications to be a valid candidate, much more a Board of Elections AGAIN approving his candidacy in light of all that has been filed in the record of this case.  It is absolutely amazing to me that not one person or entity with the responsibility, duty, power, and authority to do something about this obviously blatant illegal condition has not even taken the first step to act to correct the illegal defect for over 7 years, 9 months, and 18 days [from October 9, 2003, when Mr. Wenninger's criminal trial record was sealed from public view contrary to Ohio law].  Question: Does that make “them” complicit, incompetent, dereliction of duty, spineless, what? 

Politics and the two-party system are corrupt to the BONE MARROW!  Both parties do not represent what is in the best interests of the voting public!  Tell me, does it make any sense at all, that on the Board of Elections there are only two Democrats and two Republicans, and NO Independents at all, YET there are approximately 19,000 registered Independents, and 4,000 each Republicans and Democrats in Brown County?  Go figure! 

It’s no wonder Ohio election laws are unconstitutional with respect to denying protests by Independents, but allowing protests by Republicans and Democrats – exclusively controlled by both.  That unconstitutional law is still on the books and has not been addressed by any court, legislature, etc.  The system is RIGGED against the welfare of the voting public by both parties, where both parties have so many “skeletons in their closets,” both sides are easily controlled by the other [there is no real difference between the two] – witness all those politicians, from both parties, daily and weekly being called out for crimes, etc., while America burns.  We’re FINISHED, unless fundamental changes are made by major public pressure applied to clean up and clean out those controlling the existing broken system, and retrofit it with honest individuals that have some basic integrity, and no self-serving personal interests and desires to be in office.

July 28, 2011 - Court Entry denying Wenninger's Motion to Dismiss.
August 8, 2011 - JUDGMENT FOR WENNINGER BY 12TH DISTRICT COURT OF APPEALS - Back to the Supreme Court again in 30 days. 

This is the second time the 12th District Court has directly avoided addressing the merits of my case with respect to the loss of Wenninger's peace officer certificate by operation of law.  Why didn't the 12th say this the first time around as a reason to toss the "hot potato" case?  This time around the Court confused the scope of a quo warranto action, as it relates to the removal of a current officer holder only, that is, it is only applicable to a CURRENT term in office, not past terms that have already expired, WITH the mandatory requirements that are inherent to any candidate's qualifications for ANY term in office.  Here again you will not find any discussion by the Court why my argument about Wenninger's lack of a valid peace officer certificate "lacks merit."  The Court just completely eliminates any consideration of the substance of my arguments by saying that everything that happened prior to Wenninger's current term is MOOT.  So, what if Wenninger, for example, was convicted of a felony [receiving stolen property] or misdemeanor of the first degree [personating an officer] somewhere in either of the first two terms and was able to somehow conceal that fact from the public through two terms in office until the third term.  Would he be eligible as a candidate on January 4, 2008 for the third term?  Not at all according to the strict compliance election law in R.C. 311.01(B) for sheriff candidates.  According to this Court's decision, however, its holding essentially states that if one can conceal his/her lack of credentials long enough, through even one term in office, the fact that he/she is not qualified to run becomes a moot issue due to the passage of time only.  This case decision is now current authority for use as stare decisis in the 12th District by anyone who has lost his/her certificate or license due to operation of law, where such license has not been legally forceful for more than four years because it has lapsed, by law.  Any challenges to an expired license or certificate after four years have passed is moot and to be considered a meritless issue, argument, or complaint. 

What this Court’s decision dictates, is that if someone is successful in avoiding challenges or questions concerning his legal qualifications to hold an office or position for a four-year term in office or position de facto, whether it be peace officer, physician, chiropractor, attorney, veterinarian, engineer, nurse, real estate agent, etc., or anyone else holding a state-regulated license or certificate, and he/she can remain in that office or position long enough [at least four years], not being qualified, that fact becomes “moot” merely through the passage of time only.  After four years have passed, it just doesn’t matter anymore that he/she was ever legally qualified to hold the office or position at all. 

For example: Former Dancing With the Stars contestant Priscilla Presley, 63, was at the center of controversy when it was revealed her plastic surgeon, Dr. Daniel Serrano, was unlicensed. Presley was one of a handful of Serrano's patients who was injected with unsafe forms of silicone. The surgeon was jailed in 2006 for malpractice.  If Dr. Serrano was practicing in the 12th District's jurisdiction for more than four years without a license, he could have used this decision as authority to argue that his lack of a license is moot. 

What Ohio Administrative Code (OAC) 109:2-1-12(E) is dictating is that a sheriff has to keep his peace officer certificate legally current the same as all other rank and file peace officers in Ohio have to legally maintain theirs too.  It does not say that just because he is sheriff he automatically has a valid peace officer certificate as long as he remains acting as sheriff, de facto or de jure, which is the way this Court incorrectly interprets that provision to completely and solely support their decision reasoning [see page 18, paragraph 43, second-last sentence], with respect to his lack of a valid peace officer certificate since January 1, 2005.  He lost it LEGALLY/BY LAW during his first four-year term in office de facto, and that fact DOES NOT BECOME “MOOT” with the passage of any amount of time.  The only way it would become “moot” BY LAW is if he went back to the police academy to get a brand new certificate from scratch, which he never did since losing it on January 1, 2005.  

The analogous story of Mr. Usurping Candidate, Esq., in Corrupt County, Machinations, U.S.A.
Notice of Appeal-08-17-11 to Ohio Supreme Court - Supreme Court Case No.: 2011-1414
Relator's Merit Brief filed 10-03-11 at Supreme Court
Respondent's Reply and Merit Brief filed 10-17-11 at Supreme Court
Relator's Combined Reply Brief and Response to Cross-Appeal served 11-11-11, should be filed 11-14-11 at Supreme Court.  Next step is Rosenhoffer, et al. have 20 days to reply to our Response to their Cross-Appeal.  They could file any time between now and December 5th, at which time the Supreme Court will have everything it needs to make a decision on this case.  The Supreme Court could set a date for oral arguments or deny them and just hand down a decision. 
Reply or Fourth Brief of Appellee on Cross-Appeal
Final Supreme Court Decision - January 26, 2012 - Affirming 12th District Court Ruling.  This decision exhausts all my chances for a remedy in State courts.  It affirms that having an unqualified candidate on the ballot for a fourth term of office is "legal," even though Mr. Wenninger lost his peace officer certificate by operation of law on January 1, 2005, during his first term in office. 

Here's my analysis and opinion of the Supreme Court decision explaining why the legal analysis they used to come up with their holding is absolutely preposterous.  After re-reading the Court's Legal Analysis several times, I am thoroughly convinced that not one of the Court justices read the record prior to signing onto this decision.


Directly from the decision text:


Legal Analysis

Varnau’s Appeal: Quo Warranto


{¶ 11} In his appeal as of right, Varnau asserts that the court of appeals erred in denying the writ of quo warranto.  [True statement. I have always been told by the courts, since October 28, 2008, when the 12th District Court of Appeals affirmed the denial of a writ of mandamus to force the Board of Elections to accept my protest of Mr. Wenninger's candidacy, that I had a future remedy in quo warranto.  I filed for a writ of mandamus because the Ohio election laws only allow partisan candidates to challenge an independent, but an independent could not challenge a partisan candidate.  This violated my due process and equal protection rights under both the Ohio and U.S. Constitutions.  Both Common Pleas and the 12th District said I had to use the future quo warranto remedy to deny the mandamus writ.  Three years, two months and 29 days later, the Ohio Supreme Court finally rules that I can't have a quo warranto writ since I didn't file for it back in 2001, while I was still living outside of Ohio another two years, seven months and 11 days before moving to Brown County.]


{¶ 12} “To be entitled to the writ of quo warranto, the relator must establish that the office is being unlawfully held [Anyone reading my filings would readily realize that under the strict compliance election laws, Mr. Wenninger could not be appointed sheriff January 1, 2001, since he did not satisfy R.C. 311.01(B)(9)(b) to be a valid candidate in the 2000 election.  Mr. Wenninger's peace officer certificate had a break in service when he left the Ripley police department to assume his seat as sheriff without an appointment - by law.  By more operation of law under Ohio Administrative Code (OAC) 109:2-1-12(D)(2), Mr. Wenninger's peace officer certificate became "invalid" after one year on January 1, 2002, making him unable to carry a gun or perform the functions of a peace officer under OAC 109:2-1-12(F), thus making him ineligible at that specific point in time to be a valid candidate for the 2004 election for failure to satisfy R.C. 311.01(B)(8)(a) or (b).  After four years from assuming the position on January 1, 2001, Mr. Wenninger's peace officer certificate completely expired on January 1, 2005, under OAC 109:2-1-12(D)(3), to the point where he had to complete the basic training course all over again before performing the functions of a peace officer.  Mr. Wenninger actually completely lost his peace officer certificate BY OPERATION OF LAW within his first term in office and therefore, even if assumed to be eligible as valid candidate in the 2004 election, and winning again, he could not assume the seat without possession of a new valid peace officer certificate - again under the same strict compliance election law R.C. 311.01(B)(8)(a) or (b).] and exercised by respondent and that relator is entitled to the office.” State ex rel. Zeigler v. Zumbar, 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 23. Moreover, “[i]f a relator in a quo warranto proceeding fails to establish entitlement to the office, judgment may still be rendered on the issue of whether respondent lawfully holds the disputed office [This STILL has never been done by any Board of Elections or Court from March 2008 up to the date of this current decision].” State ex rel. Myers v. Brown (2000), 87 Ohio St.3d 545, 547, 721 N.E.2d 1053.


{¶ 13} Varnau asserts that Wenninger is not entitled to the office of sheriff, because when he was elected in 2000 and took office for his first four-year term in January 2001, Wenninger did not meet the supervisory-experience requirement or the postsecondary-education requirement of R.C. 311.01(B)(9), and this deficiency resulted in Wenninger’s having a break in service that invalidated his peace-officer certificate of training and led to Wenninger’s not meeting the qualifications for sheriff under R.C. 311.01(B)(8) starting in January 2005. [This paragraph is true in its entirety.  See comments in 12 above]


{¶ 14} We disagree. As the court of appeals correctly concluded, “any challenge to Wenninger’s qualifications to run for or hold the office of sheriff for the 2000 and 2004 election terms has been rendered moot as those office terms have already expired” [This is just disingenuous.  I have never challenged Mr. Wenninger's hold on any office but his current term in office.  It just so happens that he never had the qualifications to hold office in his first term or second term.  It's not my fault that all local and State authorities failed to catch the election fraud, but that they should have done so after he was indicted in December 2002 for election fraud.] and “Varnau cannot seek to invalidate Wenninger’s present term of office based on an alleged [There is nothing at all "alleged" here.  It's a proven fact if anyone intellectually honest takes the time to actually read the record.] prior disqualification from an expired term of office.” State ex rel. Varnau v. Wenninger, Brown App. No. CA 2009-02-010, 2011-Ohio-3904, at ¶ 38, 44. Wenninger raised defenses of mootness and laches in his motion for summary judgment.  [Thus, the Court actually holds that Mr. Wenninger's persistent illegal status under the strict compliance election laws is "moot" since he has successfully concealed, with the help of many others, the LEGAL FACT he has never been qualified to be a valid candidate in any sheriff election.  The Court has now bestowed a protective Teflon shroud around Mr. Wenninger, condoning another fraudulent election in 2012, with the same ineligible candidate on the ballot.]


{¶ 15} A quo warranto claim must be timely directed to challenge a current term of office rather than an expired one. [I have only and always challenged the current term of office in ALL my filings.  Common sense dictates that I couldn't be sheriff during Mr. Wenninger's first term in office, since I wasn't even living in Brown County at that time. Nor could I be sheriff in his second term since my wife and I had just moved to Brown County, December 4, 2003, and registered to vote December 8, 2003, which dates are in the quo warranto case record. I had no standing whatsoever to challenge Mr. Wenninger in quo warranto until after I had lost the 2008 general election for sheriff.] See Zeigler, 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 14; State ex rel. Devine v. Baxter (1959), 168 Ohio St. 559, 7 O.O.2d 431, 156 N.E.2d 746 (appeal from judgment denying writ of quo warranto to remove members of board of trustees of a cemetery association dismissed as moot when one-year terms to which members were elected had expired and those members who continued to hold office as trustees did so by authority of their reelection to new terms of office); State ex rel. Paluf v. Feneli (1995), 100 Ohio App.3d 461, 654 N.E.2d 360 (appointee’s quo warranto claim to the office of city law director was rendered moot by the expiration of the law director’s term of office).


{¶ 16} Similarly, in State ex rel. Newell v. Jackson, 118 Ohio St.3d 138, 2008-Ohio-1965, 886 N.E.2d 846, ¶ 11, we held that “[t]o be entitled to a writ of quo warranto to oust a good-faith appointee, a relator must take affirmative action by either filing a quo warranto action or an injunction challenging the appointment before the appointee completes the probationary period and becomes a permanent employee.” Varnau could have raised his claims by filing an action for quo warranto during Wenninger’s first four-year term of office beginning in January 2001 instead of waiting until Wenninger had already begun his third four year term of office beginning in January 2009 to raise his belated claim. [As I pointed out in 15 above, I was not a resident of Brown County until December 4, 2003, and had no standing whatsoever to challenge Mr. Wenninger until after I had lost the sheriff's race November 2008.]


{¶ 17} This result comports with our consistent requirement in election related cases that relators “act with the utmost diligence.” Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 19. “If relators in election cases do not exercise the utmost diligence, laches may bar an action for extraordinary relief.” State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 11. We have previously held that extraordinary-writ actions challenging a sheriff candidate’s R.C. 311.01(B)(9) qualification may be barred by laches. See Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio St.3d 256, 2004-Ohio-812, 804 N.E.2d 419; State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 724 N.E.2d 775. [If there is anything in this decision that proves not one justice read the record, it is this insistence that I failed to be prompt in filing my quo warranto case on February 27, 2009.]


{¶ 18} Although Varnau’s status as a nonpartisan may have precluded him from instituting a timely protest against Wenninger’s candidacy in the November 2000 sheriff’s race, it did not preclude him from instituting a timely quo warranto action after Wenninger took office in January 2001 to oust him from office. [Wasn't even living in Brown County at that time.  Still two years, seven months and 11 days from moving to Brown County.  Plus, I HAD NO STANDING, never even having thoughts of becoming a peace officer at all, ever, at that time!] Varnau did not do so, and he cannot belatedly raise his claim after the first term has expired and Wenninger has subsequently been elected to second and third four-year terms as sheriff.


{¶ 19} As the court of appeals observed, “[t]he focus must remain on Wenninger’s eligibility to run for and hold the office of sheriff for the present term, not for the previous terms that have already expired.” [This statement is so disingenuous, yet deliberately designed to cleverly obfuscate the difference between "terms" and "legal qualifications," so the Court can avoid analyzing the real issue of Mr. Wenninger's current legal qualifications to hold the current position as determined by strict compliance election law, revised code statutes, and administrative code provisions.] (Emphasis sic.) Varnau, 2011-Ohio-3904, at ¶ 44. For purposes of a quo warranto claim, “ ‘[h]is office’ means his present office under his present commission, and not an old expired term in the same office under a former election or appointment. He could not be ousted from such former term of office, because the term has expired, and he is not now in office under that term, and is not now an officer under that term.” [I only strove to oust Mr. Wenninger from his current office.  I was not around nor able to do anything about his first two terms in office, and don't care about his first two terms at all, but do care about the laws that have been broken since 2000, with not one local or State agency doing anything to correct the defect that is still allowed to persist into the 2012 sheriff race.  And, the top Ohio Court sanctions its continuance oblivious to what is contained in the court record.] State ex rel. Wilmot v. Buckley (1899), 60 Ohio St. 273, 299-300, 54 N.E. 272, construing the predecessor to R.C. 2733.35, which sets forth the statute of limitations for bringing quo warranto actions; see also State ex rel. Fogle v. Carlisle, 99 Ohio St.3d 46, 2003-Ohio-2460, 788 N.E.2d 1060, ¶ 10 (“Fogle’s quo warranto claim is barred by R.C. 2733.35 because he brought his action more than three years after his cause of action arose”).


{¶ 20} The cases that Varnau cites are inapposite. [Actually just the opposite.  The cases cited by the Court on laches are inapposite.] For example, in State ex rel. Huron Cty. Prosecutor v. Westerhold (1995), 72 Ohio St.3d 392, 650 N.E.2d 463, the quo warranto action was instituted by the prosecuting attorney to challenge the appointment of a person to a veterans service commission only a month and a half after the appointment. And in Zeigler, 129 Ohio St.3d 240, 2011-Ohio-2939, 951 N.E.2d 405, ¶ 15, the relator challenged his removal from office before he was removed and filed his quo warranto action only 15 days after his ouster. No comparable prompt action was taken by Varnau to challenge Wenninger’s qualifications to be a candidate for sheriff in November 2000 or to thereafter hold office. [Again, has anyone read the record over the last two years???]


{¶ 21} Therefore, Varnau has not established that Sheriff Wenninger lacks the qualifications under R.C. 311.01(B) to hold the office of sheriff for his third four-year term, and the court of appeals properly denied the writ. By so holding, it is unnecessary to address Varnau’s remaining contentions contesting the court of appeals’ evidentiary rulings, because even if these contentions had merit, he would not be entitled to the requested extraordinary relief in quo warranto. [I challenge anyone to read the record and come to the same conclusion all these courts have come to in their "analyses."  Summary judgment is properly granted only when: (1) there is no genuine issue of any material fact [none present in the record]; (2) the moving party is entitled to judgment as a matter of law [I have definitely proved Mr. Wenninger lost his peace officer certificate solely by operation of law according to time, not terms]; and (3) the evidence submitted can only lead reasonable minds to a conclusion which is adverse to the nonmoving party [Meaning - objective, unbiased minds.]


Motion to Reconsider filed with the Supreme Court February 6, 2012.  Yesterday I personally filed this Motion to Reconsider the Supreme Court's decision handed down January 26, 2012.  A Clerk at the Supreme Court by the name of Nicholas file-stamped my copies, returned them to me, and I asked him if all seven of the justices read all the filings in a case.  He assured me that all seven read what is submitted unless stated otherwise. 

The Clerk was very prompt and exact in his answer.  So with the seven justices reading everything that is filed in a case, that indicates to me that some gross error happened along the way somewhere between the legal clerks and the justices, wherein the justices had to have been mislead by some omission, etc.  The record in my case is somewhat huge, and the information about me moving to the county in December 2003 and being first qualified to become a peace officer in January 2007, was on one piece of paper, my affidavit.  If that one piece of paper was missing from the record as presented to the justices, it could have been possible for an erroneous assumption to arise causing the confusion.  In any event, the decision is not based upon the actual facts in the record as it stands.  Something happened causing all seven justices to erroneously attribute laches as a defense favorable to Wenninger, when ALL previous case law is just the opposite, if the actual facts of the case are considered. 

Wenninger's attorneys have 10 days to reply to our Motion.  The decision is in error as it stands right now.  We'll just have to wait and see what the Court decides with respect to this Motion.  It is extremely "bad law" to leave on the books right now for any precedent as it stands.  If all seven read the Motion, I would guess they would reconsider just so they could vacate this decision so it does not set precedents that are totally out of line with all prior decisions on the same issues.  Only time will tell. 

Response to Motion to Reconsider filed February 16, 2012.
Motion Denied by Supreme Court - April 4, 2012.  Case Closed