This article comes to us courtesy of the Chagrin Valley Times and Geauga Times Courier. Our thanks to the CVT for permission to republish the article here.
Chagrin Valley Times
Wednesday, February 15, 2017
By JOSEPH KOZIOL JR.
A September 2016 order by Geauga County Probate Judge Timothy Grendell to investigate felony charges of fraud, contempt of court and intimidation against two Chester Township trustees amounted to judicial overreach, according to a visiting judge assigned to the case.
Judge John J. Lohn, assigned by the Ohio Supreme Court, wrote in a Feb. 2 court order that Judge Grendell failed to follow the law in issuing the order and may have crossed the line in the separation of powers doctrine by his actions.
That September 2016 order by Judge Grendell established a master commissioner to investigate actions by Chester Trustees Michael Petruziello and Kenneth Radtke Jr. after they voted against a revised agreement between the township and the township park board. Judge Grendell charged them with committing fraud against the court by failing to approve the new agreement and questioned whether they interfered with the operation of the park by their vote and used intimidation against park board members.
Judge Lohn, retired from the Medina County Probate Court, found none of these allegations to be true.
In response to the Feb. 2 order, Judge Grendell maintained that he fully complied with the law and that there was no violation of the separation of powers. He responded through an email from his budget coordinator and county liaison Kimberly Laurie.
“The investigations were conducted by an unbiased court-appointed master commissioner, as specifically provided for by Ohio law, simply to determine if the actions by the township trustees interfered with that order,” Judge Grendell wrote. “Such judicial prevention of interference with Judge (Frank) Lavrich’s order is specifically permitted by Ohio law, again as explained by the Ohio Supreme Court’s unanimous decision.”
But, Judge Lohn saw it differently.
“Jurisdiction over the board of township trustees should end once the application to create the park district is approved,” Judge Lohn wrote. “The newly created board of park commissioners is a ‘body politic and corporate.’ If approving the R.C. 1545.02 application and appointing the park commissioners is not enough to ‘fully dispose’ of the matter before the court then I consider the park board alone to be the legal entity over which the probate court might exercise ongoing ‘plenary power’ under R.C. 2101.24(C). I am firmly convinced the court’s jurisdiction does not extend to non-parties such as Mr. Radtke and Mr. Petruziello personally.”
Judge Lohn wrote that the agreement should have been between the trustees and the park board without interference from Judge Grendell. “The statute gives the probate court no role in the negotiation, execution or oversight of these agreements,” Judge Lohn wrote.
Judge Lohn also concluded that Judge Grendell failed to follow the law when he singled out Mr. Petruziello and Mr. Radtke, despite not gathering facts to support the accusations.
Citing rules of Ohio Judicial Conduct, Judge Lohn wrote, “A judge shall not investigate facts in a manner independently, and shall consider only the evidence presented and any facts that may be judicially noticed.” An additional citation noted a 2010 case in which it was determined that “it is impermissible for the trial court to consider evidence outside the record and conduct its own investigation of the facts.”
Judge Grendell failed to take that course, Judge Lohn wrote. “The September 2016 orders that commissioned Attorney (Mary Jane) Trapp and ordered her to investigate new matters were the product of a highly irregular and erroneous process,” Judge Lohn wrote. “The judge should have conducted a hearing before issuing the orders. The parties should have been notified of the facts the judge was relying on.”
Judge Lohn wrote that if Judge Grendell believed felony offenses had been committed that he should have taken it to the county prosecutor for investigation.
The visiting judge wrote that the September 2016 orders were not against the township board, but two individuals for simply doing their job as trustees. “Notably, the judge targeted these two trustees for rejecting an agreement he had no lawful way of knowing about,” Judge Lohn wrote.
“The current trustees have done nothing to subject themselves to the jurisdiction of the probate court as individuals,” Judge Lohn wrote. “But, when Mr. Radtke and Mr. Petruziello used their legislative prerogative to vote against the new agreement, it triggered the judge to issue the September 2016 orders against them. Mr. Radtke, Mr. Petruziello and Mr. (Ward “Bud”) Kinney were free to vote for or against the new agreement according to their own discretion and considered judgment.”
“The doctrine of the separation of legislative and judicial powers prevents me from enforcing the September 2016 orders,” Judge Lohn continued.
Ms. Laurie said in the email that Judge Grendell never violated the law.
“There was no separation of powers violation,” she wrote. “Judge Grendell directed the master commissioner to determine whether the township trustees interfered with, or frustrated the purpose of Judge Lavrich’s probate court order that created the township park district, and he relied upon notifications from the master commissioner as well as statements made in court by an assistant county prosecutor. There were no out of court investigations conducted.”
She wrote that Judge Grendell has a duty to ensure that prior judge’s orders are upheld, including that of the late Geauga Probate Judge Frank G. Lavrich, whose legal action created the Chester Township Park District in 1985.
Judge Lohn wrote that Judge Grendell has oversight of the park commissioners, who have oversight of the park. “It does not follow that because the park board has authority to negotiate agreements and because the probate court appoints the members of the park board, the probate court should negotiate agreements for the park board. I use the word ‘negotiate’ broadly here, to include threats to put people in jail if they do not vote for an agreement,” he wrote.
Allowing a judge to gain jurisdiction over a park’s operations amounted to another violation of the separation of powers doctrine, Judge Lohn said. “As it is being applied here, R.C. 1545.02 et seq. likely violates the separation of executive and judicial powers, too,” he wrote. “Judge Grendell’s understanding of his plenary power gives him operational control and oversight over the park district, an executive function. And as seen here, the judge acted unilaterally – like an executive – without waiting for a motion from the park commissioners, without notice to the parties and without giving Mr. Radtke and Mr. Petruziello or their attorneys an opportunity to be heard.”
Citing a 2002 case, Judge Lohn wrote, “It is not a function of the court to dictate to the other branches of government how they follow through with the work that is their public duty to accomplish.
“Under Judge Grendell’s view of his jurisdiction, a property owner who has a yard sale that slows traffic to and from a park, or a contractor who improperly installs a swing set or a citizen who sends an email criticizing a park commissioner – each could be brought before the probate court to face contempt charges for ‘interfering with the park district’s purpose,’ ” Judge Lohn wrote.
Ms. Laurie wrote that those comparisons are not in the realm of possibility for Judge Grendell.
“Judge Grendell would never misinterpret the Ohio Supreme Court’s ruling of his jurisdiction to include trivial matters such as a yard sale that slow traffic to and from a park, an improperly installed swing set, or an email critical of a park commissioner,” she wrote.
She said he acted within the law as directed by the Ohio Supreme Court.
“Judge Grendell’s jurisdiction was clearly defined in the Ohio Supreme Court’s unanimous decision which, in fact, recognized that actions by township trustees which directly interfere with Judge Lavrich’s original order is proper jurisdiction for the probate court judge, as these actions would effectually terminate the park district’s operation of the only current park within the district. However, the visiting judge’s ruling directly contradicts this decision rendered by all seven Ohio Supreme Court Justices, as well as the opinion advocated by 18 of Ohio’s most experienced probate judges.”
In conclusion, Judge Lohn wrote that the “September 2016 entries violate the separation of powers doctrine and are premised upon an improper judicial investigation.”
The matter is yet to be fully decided as Chester Township Trustees will continue their fight with Judge Grendell over park operations and their actions in Ohio 11th District Court of Appeals. The Ohio Supreme Court appointed three outside justices to hear the case – Judge Christopher Gallagher with the 8th District Court of Appeals, Judge William Andre Klatt with the 10th District Court of Appeals and Patrick Martin McGrath, a retired judge who served with the 10th District Court of Appeals.
Mr. Radtke and Mr. Petruziello declined comment given the pending litigation in the courts.