Somebody mean bruised Tim Grendell’s feels.
They didn’t do it directly. Nobody marched up to Grendell and said “you’re a petty, totalitarian thug” to his face. Nobody left a hurtful comment on his LiveJournal.
No, somebody said mean things about Tim Grendell in a private conversation with another person, a third party.
Tim Grendell caught wind of it. Now, generally, when people find out that someone is trash-talking them, they have a few options: they can rub dirt on it and walk it off like a goddamn grown-up, they can engage in debate, high or low, with their critic, or they can even sue the critic privately for some sort of redress of buttchafe.
But Tim Grendell isn’t people. He’s a judge. Specifically, he’s a judge on the Geauga County Court of Common Pleas Probate and Juvenile Division in Ohio.
That gives Tim Grendell power — and he’s not afraid to abuse it.
The mean person in this story is Nancy McArthur, the Geauga County Republican Party Chairwoman. She’s not a party in any case before Judge Grendell. She’s not a lawyer in any case before Judge Grendell. She’s not a witness in any case before him, or a juror. She’s just a citizen who criticized him in a private communication.
Apparently one Robin West, a family member of a juvenile court litigant, was unhappy with Judge Grendell’s rulings. Ms. West reached out to Ms. McArthur for help. Ms. McArthur did not oblige. However, according to Ms. West, Ms. McArthur had some unflattering words about Judge Grendell. Here is how Ms. West put it in an email that eventually fell into Judge Grendell’s hands:
I am sorry I filed that petition. It is one of the WORST mistakes I have ever made in my life. I had no idea what [sic] flake Judge Grendell is. Confidentially, I talked with the chairman of the Geauga County Republican Party and she told me that Kasich appointed him [Grendell] to replace Henry in order to get him out of Columbus. She said her opinion of him and that of others in his own party is that he is [sic] narcissist and mentally ill. Also, that he is a chameleon who takes revenge on people who disagree with him. I can forward you the emails because she put it in writing.
Somehow, that email fell into Judge Grendell’s hands. Outraged by the suggestion that he is narcissistic and takes revenge on people who disagree with him, Judge Grendell immediately issued a order to show cause to Ms. McArthur, requiring her to appear promptly, disclose all of her written communications with West, and show why she should not be held in contempt and perhaps jailed:
Rather than laughing off McArthur’s comments and hitting the delete button, Grendell did the unthinkable. On Dec. 31, he issued a subpoena to McArthur, a woman who had nothing whatsoever to do with the case before him, demanding she bring to his courtroom on Jan. 8 “any and all emails and other communications to and from yourself” and the woman who’d sent the email. (We are not naming this woman since it appears that a juvenile relation of hers has a case before Grendell.)
Grendell’s reason for dragging McArthur into his courtroom, as stated in his “Summons and Order,” was to require her “to show cause why (she) should not be held in Contempt of Court for making vile, contemptuous, slanderous, and insulting language directed at the Judge which reflects negatively on the integrity of the Court and impedes the Court in the administration of justice and protection of the juvenile.”
The judge also reminded McArthur that a finding of contempt of court against her could result in “incarceration.”
Ms. McArthur lawyered up, as anyone would. Her lawyer, who had a conflicting hearing the day Judge Grendell had set, requested a brief continuance. Judge Grendell petulantly refused. Fortunately the Court of Appeals saw it differently, and granted a temporary stay of the proceedings in response to Ms. McArthur’s writ.
When a party seeks a writ from the Court of Appeals to interfere with an ongoing case in the trial court, the writ is typically styled “[Litigant] v. Superior Court.” When, as here, the writ challenges a judge’s power on a matter in which no opposing party has a dog in the fight, county counsel or the District Attorney or the Attorney General will represent the judge’s position. Here, the County Counsel took a pass, citing unspecified ethical restrictions. Good move. Grendell has his own private lawyer, a lickspittle quisling named Abraham Cantor.
Is Judge Grendell contrite, now that the press has caught wind of this? He is not. He is full of bluster and defiance:
“Nancy McArthur improperly interfered with an ongoing (juvenile court matter) by making factually false statements about the competency and legal proficiency of the juvenile court judge … to a known party in that case,” Grendell told the Maple Leaf on Monday.
“Ms. McArthur’s conduct jeopardizes sensitive judicial proceedings that involve protection of a (juvenile),” the judge said.
Grendell said he would not discuss juvenile cases in the media.
“However, the court also will not allow Nancy McArthur or anyone else with a personal political agenda to jeopardize child safety in Geauga County by undermining the credibility and integrity of the juvenile court and the court’s ability to administer justice and protect children in pending … cases,” he added.
But Judge Grendell’s position is simply unsupportable. He’s using the language often employed to justify a court’s broad contempt power. But he’s utterly ignorant of, or indifferent to, First Amendment precedent limiting that power. For more than 70 years, the Supreme Court has flatly rejected the proposition that judges have some inherent power to punish speech without First Amendment constraints. Instead, the Court has repeatedly required contempt actions against third parties to be justified under the same standards — like the Brandenburg clear-and-present-danger test — as any citizen speech. In a 1941 case striking down contempt sanctions against a newspaper, the Court held:
History affords no support for the contention that the criteria applicable under the Constitution to other types of utterances are not applicable, in contempt proceedings, to out-of-court publications pertaining to a pending case.
. . .
The substantive evil here sought to be averted has been variously described below. It appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste,16 on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignify of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect. Bridges v. State of Cal., 314 U.S. 252, 268, 270-71 (1941).
Most subsequent cases applying the First Amendment to sanctions for court-proceeding-related speech have involved lawyers, whose conduct in connection with courts where they practice is more subject to restriction. But even in those cases — even where a lawyer in a case before a judge is speaking in public about that case — the Supreme Court has only approved the most narrow and substantially-justified restrictions. For instance, in 1991, a bare majority of the Court found that a Nevada bar rule limiting attorney comment on pending matters could potentially pass muster because it was so limited:
The restraint on speech is narrowly tailored to achieve those objectives. The regulation of attorneys’ speech is limited-it applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys’ comments until after the trial. While supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1076 (1991)
Moreover, courts have applied familiar free speech doctrines — like the distinction between statements of fact and statements of opinion — to cases about criticism of judges. For instance, quoth the Ninth Circuit:
It follows that statements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they “imply a false assertion of fact.” See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990); Lewis v. Time, Inc., 710 F.2d 549, 555 (9th Cir.1983); Restatement (Second) of Torts § 566 (1977) (statement of opinion actionable “only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion”). Even statements that at first blush appear to be factual are protected by the First Amendment if they cannot reasonably be interpreted as stating actual facts about their target. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 879, 99 L.Ed.2d 41 (1988). Thus, statements of “rhetorical hyperbole” aren’t sanctionable, nor are statements that use language in a “loose, figurative sense.” See National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745 (1974) (use of word “traitor” could not be construed as representation of fact); Greenbelt Coop. Publishing Ass’n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970) (use of word “blackmail” could not have been interpreted as charging plaintiff with commission of criminal offense). Standing Comm. on Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995)
Under these standards, Judge Grendell’s actions are shockingly lawless. Ms. McArthur is not a party or attorney or witness before the judge, and therefore his power to limit speech is at its very weakest. Ms. McArthur spoke privately to a third party, and not in public. There is no chance that the judge can establish that her criticism had the requisite “substantial likelihood of materially prejudicing” a proceeding before him. If he could, that would mean any vigorous criticism of a judge — from a lowly commissioner to Supreme Court Justice — could get the speaker hailed into court. Moreover, Ms. McArthur’s comments — as related by West — are explicitly statements of opinion and clearly rhetorical hyberbole: “She said her opinion of him and that of others in his own party is that he is [sic] narcissist and mentally ill. Also, that he is a chameleon who takes revenge on people who disagree with him.” Even if the last sentence were not opinion, Judge Grendell’s actions show that it is true.
Judge Grendell is engaged in a grotesque abuse of his judicial power — the very worst sort of black robe fever — to vent his childish pique. This sort of thing happens more often than you might think. It’s not unique to judges. It’s the way too many humans act when given power. Judges are only unique in the extent of their privileges and their tendency to evade consequences for bad behavior.
Let’s hope that the Ohio Court of Appeals puts Judge Grendell in his place. Let’s hope that this incident permanently impairs his reputation and prevents further advancement. Let’s remember: we can’t put all of our trust in judges to protect us from the abuses of other judges. That’s a paper shield. To protect our right to free speech, we must use it vigorously when the rights of others are threatened. We must ensure that misconduct and abuse of power like this renders public life intolerable for people like Judge Grendell.
Dear Judge Grendell: I will accept service of any Order to Show Cause you may wish to issue to me.