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IS DUE PROCESS A THING OF THE PAST IN AMERICA?
by Sharon Rondeau
(Jul. 31, 2012) — A case challenging the legal right of a county sheriff to hold office has been filed with the U.S. Supreme Court after the Ohio Supreme Court denied the plaintiff’s motion for reconsideration this past spring.
A petition for a Writ of Certiorari was received by the U.S. Supreme Court clerk on June 7, 2012 and placed on the docket on June 11 under case no. 11-1493, on which the plaintiff’s local newspaper, The Brown County Press, has reported. The plaintiff, Dennis Varnau, told The Post & Email that it is scheduled for conference on September 24, 2012.
Dwayne Wenninger was elected Brown County, OH, sheriff in November 2000. In 2008, Varnau declared himself a candidate for sheriff and challenged Wenninger’s eligibility to serve since he discovered that Wenninger’s Peace Officer certificate, as required by state statute, legally expired during his first term in office. Although Varnau did not reside in Ohio until December 2003, the Ohio Supreme Court wrote in its decision that he should have registered his challenge to Wenninger during Wenninger’s first term in 2001, or during Wenninger’s second term in office. Varnau did not have standing to challenge Wenninger’s qualifications until he ran for sheriff in 2008.
Wenninger had been tried for a felony count associated with his 2000 election but was acquitted of not knowingly falsifying his candidacy paperwork, and the trial record was ordered sealed at Wenninger’s request. Although Varnau sought to have the case record unsealed, a common pleas court judge refused. Varnau appealed that decision, but the 12th District Court of Appeals agreed with Wenninger’s “right” to keep it secret from public scrutiny.
In 2004, emergency legislation was passed just before the primary election changing the educational requirements for sheriff down to the level of Wenninger’s technical school diploma. “It was just days before Wenninger had to submit his petition to become a valid candidate in 2004,” Varnau said. “They neglected, however, to look at the validity of his Peace Officer certificate, which I discovered wasn’t current because of the Ohio Administrative Code provisions dictating otherwise. Wenninger’s certificate became invalid January 1, 2002, and completely expired January 1, 2005, per the Code provisions, during his first term in office. After being certified as a valid candidate for the 2008 sheriff’s election, I went to the Board of Elections with my protest. Ohio election laws did not allow me as an independent to challenge a partisan candidate, but did allow a partisan to challenge an independent.”
Wenninger has won three elections to the position as Brown County Sheriff. He filed an opposition brief on June 26, 2012 to Varnau’s appeal with the U.S. Supreme Court.
To date, Varnau has spent approximately $60,000 in legal fees and court costs on his case. Himself an attorney, Varnau told The Post & Email that he filed the case with the U.S. Supreme Court because he knows he has not been given due process by any of the courts in Ohio. He sought a Quo Warranto in the 12th District Court of Appeals, which it refused to consider, according to Varnau. “They didn’t even address the Quo Warranto issues; they dispatched it by saying, ‘If the Board of Elections put him on there, he’s good to go.’ That obviously goes against precedent, and the Ohio Supreme Court reversed it,” Varnau said.
After the reversal and remand back to the Appeals Court, Varnau said that he was not challenging Wenninger’s first run for office, but rather, the fact that Wenninger had lost his Peace Officer certificate during his first term in office, and Varnau was running for sheriff against Wenninger in 2008 which would be Wenninger’s third term. “I have standing to appeal to the U.S. Supreme Court because I was legally entitled to the position, while Wenninger was not, and have been denied due process under both the Ohio and U.S. Constitutions from beginning to end,” Varnau said. He continued:
I think the most significant part of the Ohio Supreme Court decision is that they threw my case out because of laches, which is an equitable remedy concept that comes out of the common law. Laches means that you have to have knowledge that something is wrong and you don’t do anything about it for some time, and then finally you do something about it to the prejudice of the defendant/respondent. The Supreme Court of Ohio said that I should have brought my case in 2001. However, in 2001, my wife and I were still in Kansas and Illinois; she hadn’t retired from the military yet. I didn’t move to Brown County until December 4, 2003. So they didn’t even read the case. I didn’t have standing to bring suit until 2008 when I ran for sheriff; I didn’t run for sheriff in 2004. That’s prima facie evidence to me that not one of the seven justices of the Ohio Supreme Court read my case, which is a violation of their oath of office and dereliction of duty. They all should resign; they don’t belong there.
A definition of laches is:
a defense to a proceeding in which a plaintiff seeks equitable relief. Ohio Supreme Court case law says: “Laches has no application unless the relator [Varnau] had knowledge, actual or constructive, of the injury or wrong, and there must be the absence of an excuse for such delay, . . . ” Varnau must have allowed an unreasonable amount of time to elapse before bringing the action, and the delay must have materially prejudiced the rights of Wenninger (in this case there was never such an argument, much less a supporting fact presented by Wenninger’s attorneys).
Varnau continued, “Under Ohio law, there is a criminal provision for personating an officer with the purpose of defrauding. When Judge Robert Ringland sealed Wenninger’s trial court case file in October 2003, it covered up the fact from public scrutiny that he was never a valid candidate to be elected or appointed. The public had the right to know whether or not Wenninger was qualified. His attorneys had to know he was not qualified. Thus, Wenninger has defrauded the public by collecting the sheriff’s salary for over 12 years, which is over the felony theft level at this point in time. But along the way, we have had legislators and others diligently working to keep Wenninger’s disqualifications a secret. Nobody has vetted Wenninger’s legal qualifications to hold that seat to date. One thing that could happen is if the taxpayers and voters petition the prosecuting attorney to get the case unsealed, but we’d be dealing with the same courts again and they already failed to unseal it. Wenninger is illegally holding office now for over 12 years. There’s an ongoing criminal enterprise protecting the illegitimacy of Wenninger’s tenure in office, which is why I think they will never address the merits of my case, because if they do, all of those involved would be looking at a mandatory minimum five-year prison sentence if they’re found to be part of the criminal enterprise. It’s like Tennessee!”
The Post & Email responded, “We’ve found there that the judges declare that the law is whatever they say it is at any given moment,” to which Varnau replied:
“The Ohio Supreme Court has thrown out 500 years of English common law and changed what laches requires. To say that I should have brought my case three years before I even moved to the state…? That’s ludicrous! Here you have seven judges probably approaching 200 years of cumulative legal experience, and that’s the best they can do on a case for reasoning in a decision? Something is really wrong here, and it’s my opinion that somehow State Senator Tom Niehaus (the emergency legislation guy), the Speaker of the Ohio Senate, had political connections to surreptitiously undermine the chambers of the Ohio Supreme Court to cause those seven justices to sign off on my case and reject it based on reasoning that doesn’t even fit the facts. Something very crooked has been going on for these 12 years, and nobody will do anything about it.”
Varnau said that there are “about 600” cases which the Supreme Court will be reviewing on September 24. “It costs so much to seek justice now in America that the average person has no chance at all, particularly with politicized courts. What bothers me is how this kind of thing just doesn’t matter to people; they’re more interested in ‘American Idol’ and ‘Survivor’ and that kind of thing.” He added, “This decision, as it stands right now, goes against almost 200 years of Ohio Supreme Court case law because the decision holds, ‘If a person is not legally qualified to be a candidate, and he or she goes through a full term in office, then it doesn’t matter anymore that they aren’t qualified after entering a subsequent new term in office.’ That is contrary to every other election decision that you can find in Ohio case law. These courts have become masters at obfuscation. They kept regurgitating things that weren’t in the record, and they twisted it around to make it look as if I was challenging two terms in office that had already expired, but that was not the case. We had to go back two terms to determine that he didn’t have a valid Peace Officer certificate, by law. Wenninger is a civilian. Republican. The courts are all Republican save one Democrat on the Supreme Court. But whether it’s Democrats or Republicans, they’re both bad. That’s why the country is in the shape it’s in.”
Varnau is hopeful that the U.S. Supreme Court will either hear the case or vacate the Ohio Supreme Court decision. He believes that his case is a “mirror image” to the Obama eligibility issue, “just on a different level of government.” The current Ohio Supreme Court decision, if it stands, will be precedent (although not controlling), which Obama can cite in a second term in office, because all the claims to Obama not being qualified to hold office during his first term will be “moot,” according to this current Ohio decision.