Allen v. Vinsel

2011 Ohio 5192

Opinion

COURT OF APPEALS

MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JOHN DALE ALLEN : JUDGES:

: Hon. William B. Hoffman, P.J.

Petitioner : Hon. Sheila G. Farmer, J.

: Hon. John W. Wise, J.

-vs- :

: Case No. CT11-0043 JAY F. VINSEL :

: OPINION

Respondent :

CHARACTER OF PROCEEDING: Writ of Quo Warranto

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 30, 2011

APPEARANCES: For Petitioner For Respondent

JOHN DALE ALLEN, Pro Se D. MICHAEL HADDOX 28 N. 4th Street, Prosecuting Attorney SB4 Zanesville, OH 43701 By: WALTER K. CHESS, JR.

Assistant Prosecuting Attorney Muskingum County, OH

27 N. 5th Street, Suite 201 P. O. Box 189

Zanesville, OH 43702-0189

Muskingum County, Case No. CT11-0043 2 Farmer, J.

{¶1} Petitioner, John Dale Allen, has filed a Petition for Writ of Quo Warranto against Respondent Judge Jay F. Vinsel requesting a writ be granted ousting Respondent from his position as a judge in the Muskingum County Court of Common Pleas. Petitioner claims Respondent’s oath of office has expired.

{¶2} For a writ of quo warranto to issue, “a relator must establish (1) that the office is being unlawfully held and exercised by respondent, and (2) that relator is entitled to the office.” State ex rel. Paluf v. Feneli (1994), 69 Ohio St.3d 138, 141, 630 N.E.2d 708.

{¶3} The Ohio Supreme Court has held, “‘[A]n action in quo warranto may be brought by an individual as a private citizen only when he personally is claiming title to a public office.’ “ State ex rel. Coyne v. Todia (1989), 45 Ohio St.3d 232, 238, 543 N.E.2d 1271, quoting State ex rel. Annable v. Stokes (1970), 24 Ohio St.2d 32, 32-33, 53 O.O.2d 18, 262 N.E.2d 863.

{¶4} “Sua sponte dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate if the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. State ex rel. Bruggeman v. Ingraham (1999), 87 Ohio St.3d 230, 231, 718 N.E.2d 1285, 1287.” State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 316, 725 N.E.2d 663, 667.

{¶5} Petitioner does not aver in his Petition that he is entitled to the office held by Respondent, therefore, he, as a private citizen, cannot bring an action in quo warranto. For this reason, we find the Petition lacks merit on its face and dismiss the

Muskingum County, Case No. CT11-0043 3

Petition for failure to state a claim upon which relief may be granted.

By Farmer, J. Hoffman, P. J. and Wise, J. concur.

_s/ Sheila G. Farmer__________________

_s/ William B. Hoffman________________

_s/ John W. Wise_____________________ JUDGES

SGF/as 926

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JOHN DALE ALLEN :

:

Petitioner : Judgment Entry :

vs. :

:

JAY F. VINSEL : Case No. CT11-0043 :

Respondent :

For the foregoing reasons, we dismiss the Petition for failure to state a claim upon which relief may be granted.

Costs to petitioner.

_s/ Sheila G. Farmer__________________

_s/ William B. Hoffman________________

_s/ John W. Wise_____________________ JUDGES