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ARE ELIGIBILITY REQUIREMENTS A THING OF THE PAST?
by Sharon Rondeau
In 2000, Dwayne Wenninger submitted sworn petitions to the Brown County, Ohio, Board of Elections, declaring his candidacy for the office of Brown County Sheriff. Under Ohio election law, a candidate for county sheriff must meet a lengthy list of eligibility criteria.
In 2008, a resident of Brown County, Mr. Dennis Varnau, Esq., challenged Wenninger’s eligibility to hold the office of sheriff in a case which made its way to the Ohio Supreme Court twice, and was recently decided in Wenninger’s favor. The court found that expired terms served by Wenninger could no longer be challenged and that “Varnau cannot seek to invalidate Wenninger’s present term of office based on an alleged prior disqualification from an expired term …,”
Varnau, an attorney, had been employed in the Brown County prosecutor’s office as an investigator.
Varnau’s challenge became front-page news in Brown County, and updates had been reported in the local press as events unfolded. Varnau relocated to Ohio in 2003 and was therefore not eligible to challenge Wenninger in 2000, when Wenninger first announced his candidacy. Varnau could not challenge Wenninger in 2004, as he was not even a peace officer certified by the State until September 2005. Varnau was not eligible as a candidate for sheriff until he satisfied all the candidate requirements in January 2007.
In December 2002, Wenninger had been indicted by a local grand jury for “two counts of falsification in connection with his election in November of 2000” consisting of one misdemeanor and one felony. The misdemeanor count was dismissed by a judge, but the felony count proceeded to trial, after which the jury found Wenninger not guilty. The criminal trial court ordered Wenninger’s court records sealed. Although Varnau requested that the records be opened in the public interest, the Appeals Court stated that the records were “exempt from disclosure under state law.”
A challenge to Wenninger’s candidacy was filed in 2004 by another party. Varnau claimed that the official protest from Sandra Martin was withdrawn because emergency legislation was passed which changed the educational requirements for sheriff down to a level that included Wenninger’s diploma.
In 2008, Varnau ran for sheriff against Wenninger. Varnau filed an objection to Wenninger’s candidacy with the Brown County Board of Elections, claiming that Wenninger did not have a valid peace officer certificate to hold the position. He also protested the Ohio election statute which prohibited non-partisan candidates from challenging candidates from political parties, claiming that the law was unconstitutional. The Candidate Guide reads:
Protests against any candidate in a partisan primary may be made by the controlling committee of that party, or by any qualified elector who is a member of the same party as the candidate and who is eligible to vote for the candidate whose petition is the subject of the protest. . . . Protests against an independent candidate may be made by any qualified elector who is eligible to vote for the candidate whose petition is the subject of the protest.
(2008 Ohio Candidate Requirement Guide, Jennifer Brunner, Ohio Secretary of State, pages 21 & 22).
Varnau’s request for a Writ of Mandamus to force the Board of Elections to accept his protest was dismissed by the Appellate Court, which stated that Varnau “had other legal remedies [a quo warranto] he could pursue should Wenninger be elected sheriff” (p. 2).
Varnau filed a Quo Warranto in February 2009 which claimed that Wenninger “was not lawfully entitled to hold or therefore run for that Office in that  Election, due to said Respondent lacking all proper statutory criteria for eligibility for the Office of County Sheriff…”
At the appellate level, the court found that “the board of elections certified that [Wenninger] met the applicable qualifications to be a sheriff’s candidate for each of the elections.” Varnau then appealed the decision to the Ohio Supreme Court. The Supreme Court reversed and remanded the case for the Appeals Court to adjudicate the merits and evidence.
One of the qualifications for sheriff in 2000 was that a candidate must possess two years of post-secondary education at a Board of Regents-approved institution (9b). Wenninger affirmed that he had attended TTI, a technical training school, but that schooling could not satisfy the strict compliance election requirement under Ohio law. Ohio Revised Code 311.01(B) for sheriff candidates provides that an unqualified person “shall not be elected or appointed unless they meet all the following requirements.” Since Wenninger failed to remove his disqualification immediately upon assuming the office, he forfeited the office, and could not be appointed thereto. Without a valid legal appointment, Wenninger’s peace officer certificate became invalid by operation of law on January 1, 2002, and he completely lost his peace officer certificate by operation of law on January 1, 2005, still during his first term in office.
Ohio Rep. Tom Niehaus, now the Speaker of the Ohio Senate, was instrumental in reducing the educational requirement for Ohio sheriffs in late 2003, shortly before Wenninger submitted his declaration of candidacy to run again for sheriff in 2004. This emergency legislation rendered Sandra Martin’s objection to Wenninger’s candidacy moot, and her protest was withdrawn as a result. The legislation, however, had no effect on Wenninger’s expired peace officer certificate lost by operation of law under applicable Administrative Code provisions.
Upon remand, the Appeals Court again held for Wenninger, reasoning that Varnau could not address any disqualifications associated with Wenninger’s prior terms in office because those terms have long ago expired, and such challenges are now moot. Varnau appealed to the Supreme Court again. The Supreme Court affirmed the Appeals Court decision on January 26, 2012.
Varnau has filed a Motion for Reconsideration with the Ohio Supreme Court which states, in part:
1.) the facts on which the Decision rests are not supported by the Record;
2.) laches was not intended to bar valid claims just because the claims weren’t made before there was standing to do so;
3.) the Decision establishes that a statutorily unqualified candidate can keep office, as long as they keep their lack of qualifications secret, or unopposed, long enough;
4.) the Decision has the practical effect of insulating an unqualified candidate from ever being challenged;
5.) the Decision bars Relator from ever challenging Respondent, due to not doing so when he clearly had no right or standing to do so;
6.) the Decision as to Relator and the public in general, has the practical although unintended effect of sanctioning election fraud, particularly if a board of elections won’t act; and,
7.) by not allowing Relator to challenge the legal title to the office Respondent claims the Court has denied Relator’s Federal and State constitutional due process and equal protection rights.