QUO WARRANTO DOCUMENTS/AUDIO/VIDEO

OHIO 12TH DISTRICT COURT OF APPEALS

"[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. 
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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. 

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.  

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.

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 12^th 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.

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. 

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. 

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 12^th District Court of Appeals on my mandamus case. 

Nevertheless, in order for me to have forced the 12^th 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 12^th 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.

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.  

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:

{¶ 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.

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.