Attorney fees provision sours support for guardianship overhaul
Rep. Diane Grendell. Source: Ohio General Assembly.
A bipartisan team of House lawmakers is working on a sweeping update to Ohio’s guardianship laws. The changes stem in large part from recommendations offered by the Ohio Judicial Conference, and they come at a moment when Britney Spears’ conservatorship case has put added attention on the issue.
The problem? HB 488 also carries an unrelated provision granting judges the authority to hire their own lawyers without the approval of other county officials. And the Republican sponsor’s husband just so happens to be a judge — a judge currently suing his county commission in the Ohio Supreme Court.
On paper, Diane Grendell, R-Chesterland, makes sense as a sponsor for what she and Rep. Tavia Galonski, D-Akron, call a guardianship modernization bill. Grendell herself is a former judge on the state appeals court bench and she spent time as a guardian ad litem. But her familial connections are prompting pushback over the attorney fees portion of the proposal.
Grendell’s husband Tim Grendell is the Geauga County Probate and Juvenile Court judge. He’s engaged in a running battle with the county auditor over reimbursements for COVID-19 robocalls and local advertising for a program meant to help residents avoid probate court. In both instances, Grendell insisted to the public that “no tax dollars” were used for the message, but the auditor argues turning around and later asking for reimbursement would create “a public misrepresentation.”
More recently Judge Grendell found himself in the public spotlight for throwing two young boys in juvenile detention because they didn’t want to visit their father during the COVID-19 pandemic.
Rep. Grendell insists giving judges the power to hire outside counsel is a separation of powers issue.
“Right now, the executive branch and the legislative branch are able to get their own attorneys but judges cannot,” Grendell told the committee at the bill’s first hearing. “What happened to the equalness of judges in our state?”
But the attorney-funding portion of the bill faced a withering barrage of questions from fellow Republican Brian Stewart. He pressed the bill’s backers on singling out judges, asking why other countywide office holders like the auditor, recorder and sheriff, aren’t granted the same right to hire outside counsel.
“To my mind, the only situation where this is really going to exist is where the judge wants to sue the commissioners or another countywide officeholder and doesn’t have the funds for that,” Stewart argued. “Is there any situation where this would apply other than when the judge wants to sue fellow officeholders?”
Stewart also zeroed in on how the legislation caps attorney fees. The current language of the bill ties judges to same hourly rate as other officeholders, but it doesn’t carry the annual cap those officeholders face.
“You can have a lawsuit between the judge against his commissioners in which the Board of Commissioners is capped at, you know the $120,000 annual salary of the prosecutor,” Stewart said, “The judge can pay $300,000 to his outside counsel of choice. That’s not the intent, correct?”
Grendell quickly agreed to add the annual cap language to the bill. But as of the measure’s second hearing this week, no amendment has been offered. During that hearing, committee chair Rep. Brett Hillyer, R-Ulrichsville, seemed to indicate an amendment was forthcoming. Grendell didn’t respond to a request for comment. But in a statement, Rep. Galonski said the language on attorneys fees will be fixed, and like Grendell, argued it’s “unconscionable” for county officials to hold a veto over local courts.
“Only in the rare circumstances where a prosecutor will not or cannot represent a judge would the judge be able to hire their own counsel,” Galonski wrote. “We also propose a cap on legal fees which mirrors current caps.”
But even if the bill is addressing a significant problem for judges around the state, it’s clear that opponents are uncomfortable with the messenger. In written testimony, opponents pounced on Grendell’s involvement.
“This bill appears to have been written for the express purpose of allowing Judge Grendell to circumvent safeguards that protect public tax dollars from waste,” wrote Shelley Chernin. “It is the worst kind of judicial overreach.”
“It is apparent to all of us who follow government in Geauga County that this bill (…) is designed to address a problem that benefits only one judge in the state,” wrote Barbara Partington. “This judge is also the husband of Representative Grendell.”
Rep. Grendell wasn’t the only Grendell speaking on behalf of the measure at its first hearing.
Judge Grendell was on hand too, and in his comments he made it clear the proposed change is meant to make it easier for judges to play hardball in disputes with other county officials.
“If you have to go with your commissioners because they won’t pass your budget, and they won’t give you the money to run your court, you have to take the commissioners to the Supreme Court of Ohio,” Grendell said. “Which you don’t want to do, but it’s not your choice. It’s the fact that the commissioners won’t approve a budget.”
And Grendell would know. In addition to his fight with the county auditor, he’s currently suing his county commission in the supreme court over who controls the judicial purse strings.
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