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Appeals Court Tosses Two More Grendell Orders in Chester Park District Case

The following story appeared today, May 30, 2017, on the website of the Geauga County MapleLeaf. Our thanks to the MapleLeaf for permission to republish the article here.


MAY 30, 2017 BY JOHN KARLOVEC

This is a developing story. A request for comment has been emailed to township trustees, park district commissioners and the probate court. This story will be updated accordingly.

The 11th District Court of Appeals on Tuesday dealt another blow to Geauga County Probate Court Judge Tim Grendell’s continual attempts to exercise jurisdiction over Chester Township Trustees.

At issue were two orders Grendell issued in June 2016: one requiring the township to pay a portion of a master commissioner’s nearly $40,000 in fees related to an investigation into Chester Township Park District’s operations and a second vacating a 1993 agreement between the park district and township for management of township-owned Parkside Park.

Judges Patrick McGrath, William Klatt and Sean Gallagher — who all were sitting by assignment on the 11th District — unanimously found Grendell exceeded his jurisdiction, rejecting Grendell’s repeated reliance on a 2016 Ohio Supreme Court decision concluding a probate court has implied authority to issue orders to enforce the entry creating a park district.

It is the second time this year a court has rebuked Grendell’s reliance on the 2016 decision and found his actions exceeded his limited jurisdiction over park districts.

In February, visiting Probate Court Judge John Lohn held Grendell violated the separation of powers doctrine when he ordered civil and criminal investigations into trustees Ken Radtke and Mike Petruziello’s decision not to enter into a new contract with the park district for management of Parkside Park.

Lohn also said Grendell and the county could be personally liable if those orders were found to be void.

In the appellate court’s 23-page opinion, Gallagher said a probate court’s implied powers under ORC Chapter 1545 are not unbridled.

“In this regard, it is important to understand what was decided in (the 2016 Supreme Court decision) and what was not,” wrote Gallagher.

The only issue before the Ohio Supreme Court was whether a probate court “patently and unambiguously” lacked jurisdiction over a specific matter, he noted.

“It was not an action to determine whether the probate court possessed jurisdiction over any particular issue,” Gallagher said.

Based on the 1984 order creating the township park district and the statutory framework, the appeals court found Grendell did not maintain jurisdiction over trustees and the township.

Specifically, the 1984 order did not impose any obligations or duties on either trustees or the township; it merely created the legal entity known as the park district, established its territorial limits and noticed an intent to appoint its original board of park commissioners.

“There are no terms of that order to be enforced in perpetuity,” Gallagher wrote.

In addition, the court found while the 1984 order created a separate legal entity, it provided no obligation — statutory or otherwise — for the township to cede ownership of its park lands to the park district.

The court also found Grendell did not have jurisdiction to invalidate portions of the arm’s-length management agreement entered into in 1993, nor did he have the authority to impose the costs of the probate court-appointed master commissioner — appointed to review the park commissioners’ conduct — on the township, an “unrelated political entity.”

Finally, the court held a court cannot create its own jurisdiction and that a probate court’s continuing jurisdiction under ORC Chapter 1545 is narrow.

“Importantly, the probate court’s continuing jurisdiction is limited to certain acts or questions involving the park district’s board of commissioners or over the commissioners themselves as it relates to the court’s power to appoint and remove,” Gallagher said. “There are no statutory sections providing the probate court with (1) a general supervisory power over park district matters or (2) any additional jurisdiction over a party or entity other than the park district’s board of commissioners.”

Added Gallagher, “ More simply stated, the legislature has not provided the probate court with a general grant of fiduciary oversight over the park district.”

Once Grendell concluded removal of the park commissioners was unnecessary based on the master commissioner’s report, the inquiry should have ended, the appellate court said.

“No other action was authorized by the legislature, and the township is not a party over which the probate court has continuing jurisdiction — the township has no authority to remove or appoint any of the commissioners,” Gallagher said.

As such, the court vacated both of Grendell’s orders and ordered the township to recover from the park district its court costs.

LEGISLATIVE UPDATE:

Despite the jurisdictional issues being addressed in the court of the appeal and voluntarily recusing himself from the jurisdictional issues addressed in Judge Lohn’s February 2017 decision, Grendell’s court has been working with state Rep. Bill Seitz, R-Cincinnati, to expand a probate court’s jurisdiction over park districts.

Seitz previously told the Geauga County Maple Leaf he discussed his proposed legislation with Grendell and his office “to improve the due process protections afforded to persons believed to be interfering with the park district.”

Emails obtained from the court through a public records request confirm Grendell’s law clerk, Anthony Hurst, drafted revisions to Seitz’s proposed legislation (revised amendment), which was introduced as an amendment to the state budget bill.

The revised amendment eliminated a court’s power to:

  1. Issue an order preventing interference with the court’s order creating the park district; and
  2. Impose duties or restrictions on a person or party who interferes with the park district’s purpose as provided by the laws governing park districts or the court’s order creating the park district.

The revised proposal permits a probate court to investigate matters involving the park district either through a court hearing or through a special master commissioner, only if written request is made to the court by a majority of the board of park commissioners. (Editor’s Note: A probate court judge has the power to appoint and to remove park commissioners.)

It also states nothing in the bill’s provisions that expand a probate court’s jurisdiction authorizes the court to take any action that infringes upon any right of an individual or organization that are protected by the U.S. Constitution or Ohio Constitution.

Further, it restricts a probate court from impeding or interfering with the daily operations of a park district or the maintenance of the park district’s property unless such maintenance or operations are in violation of the laws government park districts or with the court’s order creating the district.

Finally, it limits a probate court’s actions to injunctive relief or a declaratory judgment if the court enforces its order that created the district or issues an order compelling compliance with the laws government the park district.

Ultimately, the Ohio House Finance Committee rejected Seitz’s amendment and the representative then introduced it as a stand-along bill, House Bill 218.

H.B. 218 was assigned to the Government Accountability and Oversight Committee, on Seitz sits.

The first hearing, called sponsor testimony, is scheduled for 12:30 p.m. May 31 in Room 114 of the statehouse.

Proponents and opponents of the proposed legislation will have an opportunity to testify at a subsequent hearing(s).

Members of the Government Accountability and Oversight Committee are:

Louis W. Blessing III, Chair (R)
Bill Reineke, Vice Chair (R)
Kathleen Clyde, Ranking Member (D)
Keith Faber (R)
Timothy E. Ginter (R)
Dave Greenspan (R)
Brigid Kelly (D)
Bernadine Kennedy Kent (D)
Robert McColley (R)
Dorothy Palanda (R)
Bill Seitz (R)
Ryan Smith (R)
Martin J. Sweeney (D)

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