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

From the Geauga County Maple Leaf. Our thanks to the Maple Leaf for permission to republish this article.


CHAIR OF OHIO JUDICIAL CONFERENCE EXPRESSES CONCERNS OVER SEITZ BILL

 

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

The court threw out two orders Grendell issued in June 2016: one requiring the township to pay a portion of $42,000 in master commissioner’s 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 on May 30 that Grendell exceeded his jurisdiction, rejecting Grendell’s repeated reliance on a 2016 Ohio Supreme Court decision — State ex rel. Chester Township v. Grendell — 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 actions and found they 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.

In the appellate court’s 23-page opinion, Gallagher, who sits on the 8th District Court of Appeals in Cuyahoga County, 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 Grendell 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 said.

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.”

Gallagher further 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.

LEGISLATIVE UPDATE

Kim Laurie, budget/fiscal director and county liaison for the Geauga County Probate Juvenile Court, said Grendell simply relied on the Supreme Court’s decision in issuing his orders.

Laurie pointed out the court, in its decision, noted the master commissioner determined that “certain activities by the township trustees frustrated the purposes for which the park district was created.”

“The appellate court acknowledged that ‘the probate court judge (Grendell) acted with good intentions,’ and as it is the responsibility of all courts to interpret the law as written, one can only conclude that the contradictory opinions of so many judges can be directly attributed to the vague nature of current law,” Laurie said. “This is precisely the reason that the bill introduced by (state) Rep. Bill Seitz should be passed because it would more clearly explain probate court authority regarding Chapter 1545 park districts.”

Last month, Seitz introduced House Bill 218 as a stand-alone bill after the Ohio House Finance Committee removed a similar proposal from the biennial budget bill being considered by state legislators.

Seitz’s bill, among other things, would grant a probate court broad authority to:

  • “Investigate matters involving the park district either through a court hearing or through a special master commissioner . . . if a written request is made to the court by a majority of the board of park commissioners.”
  • “Tax the cost of proceedings, including special master commissioner investigation fees, as court costs to be assessed by the court in its discretion.”
  • “[O]rder that a person become a party to a proceeding concerning a park district if the person’s presence as a party is necessary to enable the court to make a decision fairly and effectively in the proceeding.”

In addition, the bill would permit the court to designate any person a “party” and would provide that a township or other entity that submits an application to create a park district is a party in perpetuity, “unless otherwise designated by the court.”

A probate court would not be authorized under the bill to “take any action that infringes upon any rights of an individual or organization” that are protected by the U.S. or Ohio constitutions.

Seitz’s bill also features provisions providing a “probate court shall not impede or interfere with the daily operations of a park district” and any actions taken under the proposed law would be “limited to injunctive relief or a declaratory judgment.”

HB 218 was assigned to the Government Accountability and Oversight Committee, on which Seitz sits.

On May 31, Seitz offered sponsor testimony on his bill, urging committee members to expand a probate judge’s powers before another conflict arises.

“It is necessary, now, to ensure the judicial and constitutional framework is in place to protect Ohio parks and those that are entrusted with its daily operations,” Seitz said in his written testimony.

But Clermont County Probate Court Judge James A. Shriver, chair of the Ohio Judicial Conference, recommended an OJC subcommittee redraft Seitz’s bill.

In a May 24 email to Shawn Welch, OJC deputy legislative counsel, Shriver expressed concerns about the “specificity of some of the provisions” and believed they should be “reworked.”

“I have concern over how court cost are to be assessed. To whom do we assess?” he said.

“Also, the court making people a party is concerning. The Civil Rules apply and there is a rule on how that should occur,” Shriver said. “I am also concerned about the court taking on an adversarial role in setting these hearings, adding parties and then hearing the case. Ethical violations?”

OJC’s Probate Law & Procedures Committee was expected to discuss Seitz’s bill at its June 5 meeting.

On Tuesday, Welch told the Geauga County Maple Leaf the committee did vote to propose changes to the bill, which he was working through.

Proponent testimony is scheduled for 9:30 a.m. June 7, with opponent testimony to be scheduled at a later date.

 

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