Court Denies Grendell’s Motion to Dismiss McArthur Claims
May 14, 2015 by

A visiting panel of judges has found Nancy McArthur stated claims that, if true, would prohibit Geauga County Juvenile Court Judge Tim Grendell from ordering…

A visiting panel of judges has found Nancy McArthur stated claims that, if true, would prohibit Geauga County Juvenile Court Judge Tim Grendell from ordering her to appear in his courtroom because she allegedly spoke ill of him.

In denying Grendell’s request to throw out her complaint for a writ of prohibition which asks the 11th District Court of Appeals to stop Grendell’s efforts to subpoena her for a contempt hearing in a pending juvenile court case in which she is not a party the three-judge panel unanimously decided a writ would be an appropriate remedy for McArthur.

While a writ of prohibition is an extraordinary remedy that should be granted with “caution and restraint,” the judges said, prohibition is the only remedy available to a nonparty who wishes to challenge an order that restricts First Amendment free speech rights.

The appellate panel also said McArthur’s complaint challenges Grendell’s authority to issue a subpoena to a person “who patently has no connection with the underlying adjudication other than an allegation that she made derogatory statements about Grendell to a person that may have some connection to the underlying juvenile proceeding.”

These allegations, the judges said, fall within the category of cases where courts have recognized prohibition as an available remedy, particularly where a procedural device is attempting to be used to abridge someone’s First Amendment rights.

On Dec. 31, Grendell ordered McArthur to his courtroom so that he could question her about statements she allegedly made about him to a family member of a juvenile involved in a pending juvenile court case.

Those statements reflected negatively on the integrity of the juvenile court and impeded the court “in the administration of justice and protection of the juvenile,” he previously said.

“The appellate panel made a procedural decision based solely on McArthur’s false assertions that she did not know about or involve herself in the juvenile court child protective custody case,” Grendell told the Geauga County Maple Leaf Tuesday. “The juvenile court will file its answer and prove to the appellate panel that McArthur purposely interfered with a child protective custody case.”

Grendell’s attorney, Abe Cantor, previously said McArthur, in seeking the protection of the appellate court, was attempting to limit traditional common pleas court activity.

Those traditional court actions include the authority to determine if McArthur has committed contempt of court and to summon her to court, Cantor argued in Grendell’s motion to dismiss McArthur’s complaint.

“McArthur knowingly made false statements about the judge to a noncompliant party in a child protection case,” Grendell said Tuesday. “McArthur’s improper actions further incited that party’s noncompliance with court orders.”

He added, “McArthur’s conduct interfered with the administration of justice in a difficult child protection case and the court’s ability to protect the child in that case. Once the appellate panel receives the true facts, McArthur’s baseless prohibition request should be denied.”

Cantor also had argued that prohibition is unwarranted because McArthur could challenge the court’s decision in the appellate court if she were found in contempt.

However, the appellate panel said “when a judge patently exceeds his or her authority, the availability of an appeal is immaterial.”

McArthur’s attorney, Nancy Schuster, declined to comment on the appellate panel’s decision other than to say the court would decide the case based on the law and the evidence before it.

She previously said in court documents, however, that judges, like all other public officials, are subject to public criticism. As long as that criticism is merely an expression of opinion, it is constitutionally protected free speech.

Schuster has maintained McArthur is not challenging the court’s jurisdiction to carry out basic judicial functions.

“Mrs. McArthur’s complaint centers upon the fact that a court exceeds its jurisdiction when it utilizes a pending case as the basis for summoning before it a complete stranger to that case for the purpose of obtaining emails in which the stranger allegedly asserted unfavorable opinions about the judge presiding over the case,” Schuster said in McArthur’s complaint.

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

“Judge Grendell intends to use his judicial power … to pursue his personal agenda,” she added. “However, nothing in the Ohio Constitution or Ohio law provides Judge Grendell with the authority to use a pending case as a basis for pulling a stranger off the street and threatening to hold that stranger in contempt simply because she allegedly spoke ill of him.”