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John Dale Allen v. Mark C. Fleegle

October 18, 2011

JOHN DALE ALLEN,
PETITIONER,
v.
MARK C. FLEEGLE, RESPONDENT.



The opinion of the court was delivered by: Delaney, J.,

Cite as Allen v. Fleegle,

JUDGES: Hon. John W. Wise, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING: Petition for Writ of Quo Warrantor

JUDGMENT: WRIT DISMISSED

{¶1} Petitioner, John Dale Allen, has filed a Petition for Writ of Quo Warrantor against Respondent Judge Mark Fleegle requesting a writ be granted ousting Respondent from his position as a judge in the Muskingum County Court of Common Pleas. Petitioner claims Respondent violated his oath of office by setting an excessive bail.

{¶2} For a writ of quo warrantor 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 warrantor 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 maintain an action in quo warrantor. For this reason, we find the Petition lacks merit on its face and dismiss the Petition for failure to state a claim upon which relief may be granted.

{¶6} For this reason, Petitioner's request for Writ of Quo Warrantor is denied.

{¶7} PETITION FOR WRIT DISMISSED.

{ΒΆ8} COSTS TO ...


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