Grendell Seeks to Disqualify Appellate Court Judge in McArthur Case

February 26, 2015

Geauga County Juvenile Court Judge Tim Grendell has filed an affidavit with the Ohio Supreme Court seeking to disqualify Judge Colleen O’Toole from hearing the case involving Nancy McArthur.

McArthur had filed a prohibition action with the 11th District Court of Appeals in Warren to prevent Grendell from ordering her to his courtroom to show cause why she should not be held in contempt of court for out-of-court statements she made about Grendell to a third party.

On Jan. 8, the 11th District granted McArthur emergency relief from an order Grendell issued on Dec. 31 summoning her to appear for a hearing in his courtroom.

Presiding and Administrative Judge Timothy Cannon issued the order and O’Toole concurred.

In his four-page affidavit filed Feb. 12, Grendell said O’Toole — who is a Repub-lican — as is Grendell, should be removed from hearing the case because McArthur has “significant personal and political/professional connections” to O’Toole.

O’Toole’s removal, therefore, is necessary to avoid “even an appearance of bias, prejudice or impropriety and the unquestioned neutrality of an impartial judge,” Grendell argued.

Grendell also accused McArthur of “injecting politics” into the prohibition action for no legal or procedural reason.

In support of his affidavit, Grendell also included an affidavit from his wife, Judge Diane Grendell, who sits on the appellate court with O’Toole.

Diane Grendell, also a Republican, said that on Feb. 10 O’Toole approached her after court and complained that Cannon was “yelling” at her to recuse herself from the litigation.

“Judge O’Toole further said that she cannot recuse herself because Nancy McArthur would ‘grieve’ her and that my husband, Judge Timothy Grendell, should file a motion to recuse her (Judge O’Toole),” Diane Grendell said.

“This comment and the ‘fear’ of reprisal by Ms. McArthur provide further reason for Judge O’Toole’s disqualification in the pending prohibition case,” Tim Grendell said.

In addition, he said O’Toole has “stated an intention to run for the Ohio Supreme Court and, as such, most likely will be seeking support from the Geauga County Republican Party.”

He added, “Ms. McArthur’s political leadership position could reasonably cause an objective and disinterested observer to question the actions taken by Judge O’Toole.”

Bret Crow, director of the Ohio Supreme Court’s public information office, said O’Toole was notified about the filing and asked to file a response.

“It’s not set in stone by rule, but our procedure that we’ve adopted over the years is to give the judge 15 days to respond,” Crow explained. “After that, the chief (justice) makes the call.”

Crow reiterated, however, the procedural timeline is a guideline only and there is no timeframe for Chief Justice Maureen O’Connor to make a decision.

That decision would not include transfering the prohibition case to another appellate district, Crow said, although outside appellate court judges could be appointed to hear the case.

“The case stays with the court that is hearing it,” he added. “What could happen is judges from elsewhere could hear that case on a temporary basis as visting judges.”

Asked whether Diane Grendell’s

disclosure to her husband of a conversation with another appellate court judge about his case presented any ethical issues, Crow said the chief justice would not get involved in that issue.

“To get into that, somebody would have to bring that through the disciplinary process and allege some sort of violation of a rule,” he explained. “But the chief justice does not get involved in that at all.”

Cannon told the Geauga County Maple Leaf Tuesday it was not his practice to comment on cases pending in the 11th District.

“However, I believe I should respond to the statement in Judge Diane Grendell’s affidavit concerning my conversation with Judge Colleen O’Toole,” Cannon said in an email response.

Cannon said he had no idea what O’Toole told or did not tell Diane Grendell about his conversation with O’Toole.

“However, any suggestion that I was ‘yelling’ at Judge O’Toole is completely incorrect. That did not happen,” the presiding judge said. “In addition, I never told Judge O’Toole to recuse herself from the case. That is not my decision and it was not the purpose of my very brief discussion with her.”

Cannon said an “informal request” was made to the court that O’Toole needed to recuse herself from the McArthur case.

“She did not respond to that request,” Cannon said, adding O’Toole needed to inform the parties whether she was going to recuse herself from the case before participating in the pending motions before the court.

“Her response would allow a party to formally seek disqualification if they chose to do so,” said Cannon. “It did not matter to me whether Judge O’Toole recused herself. However, I did indicate to her that she needed to make a decision.”

Cannon said O’Toole informed him she would not recuse herself and he then had court staff notify counsel for both parties of her decision.

O’Toole’s office told the Maple Leaf Tuesday that the judge had no comment at this time as the matter is pending before the Ohio Supreme Court.

Her office added the judge’s response, when filed, would be a public records obtainable from the Ohio Supreme Court’s Office of Legal Resources.

McArthur, who also serves as a City of Chardon councilwoman, allegedly gave unfavorable opinions about Tim Grendell, who is presiding over a case involving the third party’s grandchild.

But McArthur is not a party or witness, does not know the individuals involved and has no knowledge whatsoever even regarding the nature of issues in the case, her attorney, Nancy Schuster, previously told the appellate court in court documents.

Grendell’s subpoena and order were issued for the sole purpose of satisfying his “private interest” in investigating what McArthur said about him, said Schuster.