[Cite as Allen v. Vinsel, 2011-Ohio-5192.]
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
Muskingum County, Case No. CT11-0043 4
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