Disciplinary Counsel v. Grendell

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Grendell, Slip Opinion No. 2025-Ohio-5239.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2025-OHIO-5239

DISCIPLINARY COUNSEL v. GRENDELL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Grendell, Slip Opinion No.

2025-Ohio-5239.]

Judges—Misconduct—Violations of the Code of Judicial Conduct—No discipline

imposed for violation of Jud.Cond.R. 3.2 because that rule’s broad

restriction on testimony and consultation with government officials is a

content-based speech restriction in violation of First Amendment to United

States Constitution—18-month suspension, with 12 months conditionally

stayed, and immediate suspension from judicial office without pay for

duration of disciplinary suspension.

No. 2024-1409—Submitted February 13, 2025—Decided November 21, 2025.

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2022-045.

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DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and

DETERS, HAWKINS, and SHANAHAN, JJ., joined. FISCHER, J., concurred in part and

dissented in part, with an opinion joined by EDELSTEIN, J. CARLY M. EDELSTEIN,

J., of the Tenth District Court of Appeals, sat for BRUNNER, J.

DEWINE, J.

{¶ 1} Judge Timothy J. Grendell of the Probate and Juvenile Divisions of

the Geauga County Court of Common Pleas is charged with multiple violations of

the Code of Judicial Conduct and Rules of Professional Conduct across three

counts. A panel of the Board of Professional Conduct found by clear and

convincing evidence that Judge Grendell committed the charged violations. The

panel recommended that Judge Grendell be suspended from the practice of law for

18 months with six months stayed.

{¶ 2} The board adopted the panel’s report and recommendation and filed

it with this court. Judge Grendell raises seven objections to the board’s findings of

fact and conclusions of law. We have considered the board’s findings and

recommendation and have independently reviewed the entire record, including the

testimony in this matter and the transcripts of the underlying proceedings that form

the basis of the charges. Based on our review of the record, we overrule Judge

Grendell’s objections in part and sustain them in part. We find that Judge Grendell

violated the Code of Judicial Conduct and suspend him from the practice of law in

Ohio for 18 months with 12 months stayed.

{¶ 3} Each of the three counts in this case originates from a distinct set of

facts. A fourth count (Count 2) was dismissed by the panel before Judge Grendell’s

hearing. We address the counts in the following order. Count 4 (“the legislative

testimony”) involves Judge Grendell’s testimony at an Ohio House committee

meeting. Count 3 (“the Tea Party event”) concerns a presentation Judge Grendell

made at a political meeting. Count 1 (“the Glasier matter”) involves Judge

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Grendell’s handling of a difficult custody dispute that had been transferred to the

juvenile division from the local domestic-relations division.

I. COUNT 4: THE LEGISLATIVE TESTIMONY

{¶ 4} We first take up the board’s conclusion that Judge Grendell violated

the Code of Judicial Conduct by voluntarily testifying before a legislative

committee. The board found a violation of Jud.Cond.R. 3.2, which provides in

relevant part: “A judge shall not appear voluntarily at a public hearing before, or

otherwise consult with, an executive or a legislative body or official,” unless the

testimony is “[i]n connection with matters concerning the law, the legal system, or

the administration of justice” or “[i]n connection with matters about which the

judge acquired knowledge or expertise in the course of the judge’s judicial duties.”

The board also determined that Judge Grendell violated Jud.Cond.R. 1.3, which

states: “A judge shall not abuse the prestige of judicial office to advance the

personal or economic interests of the judge or others, or allow others to do so.”

{¶ 5} “[A]s the ultimate arbiter of misconduct and sanctions in disciplinary

cases, [we are] not bound by factual and legal conclusions drawn by either the panel

or the board.” Disciplinary Counsel v. Kelly, 2009-Ohio-317, ¶ 11. Rather, we are

“free to exercise our independent judgment as to evidentiary weight and applicable

law.” Id. Disciplinary counsel must prove a violation of the rules by clear and

convincing evidence. Disciplinary Counsel v. Jackson, 1998-Ohio-474, ¶ 12;

Gov.Bar R. V(12)(I).

{¶ 6} We reject the board’s conclusion that by testifying, Judge Grendell

abused the prestige of his judicial office for his personal benefit or for the benefit

of others in violation of Jud.Cond.R. 1.3. And because we conclude that

Jud.Cond.R. 3.2’s broad restriction on testimony and consultation with government

officials regarding all but a few topics is a content-based speech restriction in

violation of the First Amendment, we will not discipline Judge Grendell for

violation of that provision.

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A. Facts

{¶ 7} COVID-19 and its consequences dominated policy discussions in the

General Assembly in the spring of 2020. One bill that emerged was House Bill 624

(“H.B. 624”). That bill was designed to require the government to report and

release additional COVID-19 statistics. According to its proponents, it would

require local health officials and healthcare providers to provide more complete

COVID-19 testing numbers to the Ohio Department of Health and require the

department to release more detailed daily figures regarding COVID-19 testing,

hospitalization, and deaths. H.B. 624’s primary sponsor was Representative Diane

Grendell, Judge Grendell’s wife.

{¶ 8} Judge Grendell testified before the Ohio House State and Local

Government Committee in favor of H.B 624. He did so voluntarily—that is, he

testified without being subpoenaed. As Judge Grendell put it, he “primarily”

testified in his capacity as a judge, “but also as a citizen of the state of Ohio.”

{¶ 9} Judge Grendell began his testimony by identifying what he

understood to be a major problem in Ohio: a lack of complete information on

COVID-19. The way he saw it, the Ohio Department of Health’s daily statistics

“release[d] half the facts to the public, the scary half of the facts: cumulative

numbers of confirmed cases, cumulative numbers of hospitalized patients,

cumulative numbers of alleged or suspected COVID deaths.” He testified that by

releasing only the “scary half of the facts,” the Department of Health contributed

to an unnecessary “atmosphere of fear” that made it harder for Ohioans to return to

normal life. He drew comparisons between COVID-19 and past flu outbreaks to

demonstrate his point.

{¶ 10} Judge Grendell cited reports of people failing to seek or delaying

medical treatment from “fear of going to the doctor.” He spoke about an increase

in opiate-related deaths and several instances of suicide in Geauga County. He said

his court never closed during the COVID-19 outbreak, partially due to an increase

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in cases as a result of the outbreak. He specifically mentioned that juvenile “unruly

cases ha[d] gone up,” that “mental health civil commitments ha[d] increased,” and

that “domestic violence cases [were] on the uptick.” And Judge Grendell noted that

he and some fellow common-pleas-court judges were “putting together a letter

trying to remind people of their civic duty of jury duty, and assuring them that if

they [came] to court to perform jury duty, their lives [would] not be placed at risk.”

{¶ 11} According to Judge Grendell, H.B. 624 was a step in the right

direction. He argued: “As Ohio struggles to return to normal, Ohioans need to know

the current number of hospitalizations, the actual number of daily deaths, and [the]

number of cases currently requiring medical treatment,” and “House Bill 624 will

make sure that Ohioans have ready access to all of those important facts.” Judge

Grendell concluded his testimony by taking a couple questions from the committee

about the State’s COVID-19-testing regime.

{¶ 12} In support of its conclusion that Judge Grendell abused the prestige

of his judicial office to advance the interests of a family member in violation of

Jud.Cond.R. 1.3, the board simply pointed to the fact that his wife—Representative

Diane Grendell—was the primary sponsor of H.B. 624. It found that “there [was]

no other plausible reason for [Judge Grendell] to provide the testimony he provided

except to promote his own, and his wife’s, personal interests.” The board did not

elaborate on what those personal interests might be.

{¶ 13} To support its conclusion that Judge Grendell violated Jud.Cond.R.

3.2 by testifying on a matter that did not involve the legal system, the board

advanced three rationales. First, the board noted that the Ohio Judicial Conference

did not include H.B. 624 in any of its biweekly newsletters or in its list of bills that

it identified as impacting the judiciary. The board acknowledged that the Judicial

Conference’s apparent lack of interest in H.B. 624 is not dispositive, but it

characterized it as strong evidence that Judge Grendell’s testimony “was motivated

by the personal interests and agendas of himself and his wife, rather than by

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concerns about the impact of the bill on the judiciary.” Second, the board called

into question the accuracy of Judge Grendell’s testimony. It opines that because he

testified “with no quantitative data to back up his claim[s],” Judge Grendell’s

testimony about how COVID-19 affected the judiciary “was tenuous, at best.” And

third, according to the board, “less than one minute of [Judge Grendell’s] 18 minute

and 55 second testimony was spent talking about information related to the court.”

Putting these three rationales together, the board concluded that Judge Grendell’s

“testimony to the legislative committee was not ‘in connection with matters

concerning the law, the legal system, or the administration of justice.’ ” Board

Report at ¶ 260, quoting Jud.Cond.R. 3.2.

B. Objections

{¶ 14} Judge Grendell presents two objections to the board’s findings and

recommendation regarding his legislative testimony. First, he argues that imposing

sanctions on him for testifying before the General Assembly would violate his right

to free speech under the First Amendment to the United States Constitution and

Article I, Section 11 of the Ohio Constitution. Second, he argues that his testimony

did not violate Jud.Cond.R. 1.3 or 3.2. We partially agree with Judge Grendell’s

second argument and fully agree with his first. Because we generally dispose of

cases without reaching constitutional issues if we can, Risner v. Ohio Dept. of

Natural Resources, Ohio Div. of Wildlife, 2015-Ohio-3731, ¶ 29, we consider his

arguments in reverse order.

1. Judge Grendell’s testimony did not abuse the prestige of his office for

personal or economic reasons, but it did extend beyond matters concerning the

law, the legal system, and the administration of justice, and beyond matters

about which he acquired knowledge or expertise in the course of his judicial

duties

{¶ 15} We begin with Judge Grendell’s argument that he did not violate

either rule. We agree that he did not violate Jud.Cond.R. 1.3. The board’s finding

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that “there [was] no other plausible reason for [Judge Grendell] to provide the

testimony he provided except to promote his own, and his wife’s, personal

interests” is wrong. One plausible reason for Judge Grendell to testify in support

of H.B. 624 would be that he is a concerned judge and citizen and he simply thought

it would be good for the State and the judiciary. Another would be that he had

specific insight to share that he acquired through his work as a judge and former

legislator. Both are plausible reasons based on the record in this case, despite the

board’s conclusory finding otherwise. And the fact that the board cannot articulate

what personal interests Judge Grendell’s testimony could have served—beyond

merely implying that testifying in support of a bill that his wife sponsored is

promoting their personal interests—is telling. Jud.Cond.R. 1.3 does not prohibit

judges from testifying for or against bills simply because their spouses are sponsors

of those bills. Because the board offered nothing more to support its finding that

Judge Grendell “abuse[d] the prestige of [his] judicial office to advance the personal

or economic interests of” himself or Representative Grendell, we conclude that he

did not violate Jud.Cond.R. 1.3.

{¶ 16} However, Judge Grendell’s testimony did go beyond Jud.Cond.R.

3.2’s prohibition on voluntary legislative testimony that is not “[i]n connection with

matters concerning the law, the legal system, or the administration of justice” or

“matters about which the judge acquired knowledge or expertise in the course of

the judge’s judicial duties.” It is true that some of Judge Grendell’s testimony

related to legal matters and his experiences as a judge. For example, his testimony

about assuring potential jurors of their safety was related to the legal system. And

regardless of the board’s misgivings about the factual basis for it, his testimony

about an increased caseload due to COVID-19 was information that he acquired in

the course of his judicial duties. But the bulk of his testimony was unrelated to the

law, the legal system, the administration of justice, or his knowledge and expertise

acquired as a judge.

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{¶ 17} Judge Grendell spent almost all his time testifying about the

inadequacies of COVID-19 reporting and why he thought these inadequacies made

it impossible for Ohioans to make informed decisions about their own lives. He

discussed varied topics such as opiate-related deaths, suicides, the rates at which

people were seeking medical care, business and school closures, and the similarities

and differences between COVID-19 and past flu outbreaks. The entirety of the

question-and-answer portion of his testimony consisted of his talking about the

State’s COVID-19-testing regime and how it could be improved. These are

important topics that are worthy of discussion in the General Assembly. But

because the topics were not connected with “the law, the legal system, or the

administration of justice” or “matters about which [he] acquired knowledge or

expertise in the course of [his] judicial duties,” Jud.Cond.R. 3.2 prohibited Judge

Grendell from testifying about them. We therefore conclude that Judge Grendell

violated Jud.Cond.R. 3.2.

2. Jud.Cond.R. 3.2 is unconstitutional because it violates the First Amendment

{¶ 18} Judge Grendell’s testimony went beyond what Jud.Cond.R. 3.2

allows, so we must consider his argument that Jud.Cond.R. 3.2 violates his free-

speech rights. He contends that Jud.Cond.R. 3.2 is unconstitutional because it is

facially overbroad in that it restricts too much constitutionally protected speech.

{¶ 19} Judge Grendell centers his argument on the First Amendment to the

United States Constitution, although he also references Article I, Section 11 of the

Ohio Constitution. Because his briefing is focused almost exclusively on his

federal constitutional argument, we will take up that argument first. 1 And because

we hold that Jud.Cond.R. 3.2 does not pass scrutiny under the First Amendment,

1. When both a federal and a state constitutional claim have been fully developed, there is a strong

argument that this court should ordinarily consider the state claim first. See, e.g., Sutton, 51

Imperfect Solutions: States and the Making of American Constitutional Law, 178-190 (2018). But

in this case, because the state argument is undeveloped, we find it prudent to first take up the federal

claim. See State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029, ¶ 32.

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we find it unnecessary to reach the largely unbriefed issue of whether the restriction

also violates Article I, Section 11 of the Ohio Constitution.

i. Jud.Cond.R. 3.2 is a content-based restriction on speech that can be upheld

only if it survives strict scrutiny.

{¶ 20} As long as codes of conduct for lawyers and judges have been

around, courts have been grappling with their relationship to the First Amendment.

On the one hand, Ohio has an interest in “promot[ing] and maintain[ing] ‘[a]n

independent, fair, and impartial judiciary’ . . . to ensure ‘the greatest possible public

confidence in [the] independence, impartiality, integrity, and competence’ of

judges,” and it furthers that interest with its Code of Judicial Conduct for judges.

(Third and fourth bracketed text in original.) In re Judicial Campaign Complaint

Against O’Toole, 2014-Ohio-4046, ¶ 23, quoting Jud.Cond.R., Preamble [1]

through [3]. The same can generally be said about rules prescribing ethical

standards for lawyers. E.g., Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074-

1075 (1991). But on the other hand, lawyers and judges do not give up their First

Amendment right to free speech just because they chose to pursue a career in law.

In fact, the Code of Judicial Conduct itself acknowledges that the rules are

subordinate to First Amendment requirements, cautioning that the rules “are rules

of reason that should be applied consistent with constitutional requirements.”

Jud.Cond.R., Scope [5].

{¶ 21} Certain restrictions on the First Amendment–protected speech of

lawyers and judges “cannot be justified by Ohio’s interest in maintaining a

competent and impartial judiciary.” O’Toole at ¶ 43. The State’s interest in

protecting the integrity of legal institutions “is an insufficient reason ‘for repressing

speech that would otherwise be free.’” Landmark Communications, Inc. v. Virginia,

435 U.S. 829, 841-842 (1978), quoting New York Times v. Sullivan, 376 U.S. 254,

272-273 (1964). In other words, restrictions on lawyers’ and judges’ speech that

cannot survive ordinary First Amendment scrutiny cannot stand.

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{¶ 22} The landmark case about how the First Amendment interacts with

judicial codes of conduct is Republican Party of Minnesota v. White, 536 U.S. 765

(2002). In White, a candidate for judicial office argued that his right to free speech

was violated by the Minnesota Code of Judicial Conduct’s “announce clause,”

which prohibited a judicial candidate, including an incumbent judge, from

“announc[ing] his or her views on disputed legal or political issues.” White at 768-

770. Rather than employ some special test in the context of a code of judicial

conduct, the United States Supreme Court simply conducted a normal First

Amendment analysis— whether the announce clause could survive strict scrutiny.

See id. at 774-775; see also Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015)

(“we hold today what we assumed in White: A State may restrict the speech of a

judicial candidate only if the restriction is narrowly tailored to serve a compelling

interest”). The Court held that the Minnesota provision prohibiting judicial

candidates from announcing their views on disputed legal and political issues

violated the First Amendment. White at 788.

{¶ 23} We did something similar in O’Toole. In that case, we considered

whether a rule in the Ohio Code of Judicial Conduct that prohibited a judicial

candidate from saying things that were true but misleading violated the First

Amendment. O’Toole, 2014-Ohio-4046, at ¶ 1-2. After describing the ordinary

First Amendment test for such a speech restriction, id. at ¶ 19-20, we held that the

rule violated the First Amendment “because it chill[ed] the exercise of legitimate

First Amendment rights,” id. at ¶ 42, and could not “be justified by Ohio’s interest

in maintaining a competent and impartial judiciary,” id. at ¶ 43.

{¶ 24} And although White was the first United States Supreme Court

decision to strike down a rule in a code of judicial conduct, the Supreme Court has

long held that the First Amendment applies the same to speech restrictions for legal

professionals as it does to speech restrictions for everyone else. See Garrison v.

Louisiana, 379 U.S. 64, 64-67 (1964) (holding that the actual-malice standard from

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New York Times v. Sullivan applied to attorney speech critical of the judiciary); see

also Jenevein v. Willing, 493 F.3d 551, 557-558 (5th Cir. 2007) (applying strict

scrutiny to speech restrictions on elected judges). All this to say: there is no special

test for speech restrictions on judges. Thus, what follows is an ordinary First

Amendment analysis.

{¶ 25} The First Amendment prohibits the government from “abridging the

freedom of speech.” U.S. Const., amend. I. That means that, “[a]s a general matter,

government has no power to restrict expression because of its message, its ideas,

its subject matter, or its content.” O’Toole at ¶ 19. Such restrictions are called

content-based restrictions. We know a restriction is content based when it “applies

to particular speech because of the topic discussed or the idea or message

expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Content-based

restrictions violate the First Amendment unless they can survive strict scrutiny—

that is, they “are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state

interests.” Id. And of course, that goes for content-based restrictions on judges’

speech in the Code of Judicial Conduct, too. See O’Toole at ¶ 20; White, 536 U.S.

at 774-775; Williams-Yulee, 575 U.S. at 444.

{¶ 26} Jud.Cond.R. 3.2 is a content-based restriction. It prohibits judges

from testifying before the General Assembly about all but a few topics. In other

words, Jud.Cond.R. 3.2 applies to judges’ speech “because of the topic discussed

or the idea or message expressed,” Reed at 163. Therefore, as disciplinary counsel

acknowledges, Jud.Cond.R. 3.2 can be upheld only if it survives strict scrutiny.2

2. It is true that this court adopted Jud.Cond.R. 3.2 under its Article IV, Section 5(B) power to make

rules governing the practice of law. But that power gives us the authority to reconsider the

constitutionality of rules at any time—including in an appropriate case. See O’Toole, 2014-Ohio-

4046, at ¶ 43-45. The general restriction on voluntary legislative testimony entered our rules as part

of the now-superseded Code of Judicial Conduct in 1973, prior to the United States Supreme Court’s

decision in White. See Canon 4(B) of the 1973 Code of Judicial Conduct, 36 Ohio St.2d xxvi. The

restriction was carried over with some modifications with the adoption of the current Code of

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ii. The restriction is not narrowly tailored to serve a compelling state interest

{¶ 27} Disciplinary counsel asserts three compelling state interests for

Jud.Cond.R. 3.2: “(1) the maintenance of an independent, fair, and impartial

judiciary; (2) public confidence in the independence, impartiality, integrity, and

competence of judges; and (3) the separation of powers between the judicial branch

and the legislative and executive branches.” We take up these interests one at a

time.

{¶ 28} Judicial Impartiality. We start with the maintenance of an

independent, fair, and impartial judiciary. Although disciplinary counsel uses

“independent, fair, and impartial” as a phrase with a vague, collective meaning, it

is clear that the state interest at issue is one of judicial impartiality. Disciplinary

counsel argues that the provision serves a compelling state interest because “[a]

judge who offers testimony in favor of a particular bill may find himself unable to

preside impartially over a matter involving that bill.”

{¶ 29} In White, the United States Supreme Court recognized that a state

could have a compelling interest in judicial impartiality. See White, 536 U.S. at

775-776. But in doing so, it made clear that impartiality in this context means

impartiality in its “root meaning”—that is, “the lack of bias for or against either

party to the proceeding.” (Emphasis in original.) Id. at 775. Thus, it found that the

Minnesota provision prohibiting judicial candidates from announcing their views

on disputed issues a poor fit for this interest:

We think it plain that the announce clause is not narrowly

tailored to serve impartiality (or the appearance of impartiality) in

Judicial Conduct in 2009. We have never disciplined a judge for violating Jud.Cond.R. 3.2—and

we are unaware of disciplinary counsel ever charging a judge under the provision—so this case

represents our first opportunity to consider the constitutionality of the provision in the context of an

adversary proceeding.

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this sense. Indeed, the clause is barely tailored to serve that interest

at all, inasmuch as it does not restrict speech for or against particular

parties, but rather speech for or against particular issues. To be sure,

when a case arises that turns on a legal issue on which the judge (as

a candidate) had taken a particular stand, the party taking the

opposite stand is likely to lose. But not because of any bias against

that party, or favoritism toward the other party. Any party taking that

position is just as likely to lose. The judge is applying the law (as

he sees it) evenhandedly.

(Emphasis in original.) Id. at 776-777.

{¶ 30} The Court also considered two less common meanings of

impartiality. It noted that “[i]t is perhaps possible to use the term ‘impartiality’ in

the judicial context . . . to mean lack of preconception in favor of or against a

particular legal view.” (Emphasis in original.) Id. at 777. But it concluded that

while “[i]mpartiality in this sense may well be an interest served by the announce

clause, . . . it is not a compelling state interest, as strict scrutiny requires.”

(Emphasis in original.) Id. It explained that “[a] judge’s lack of predisposition

regarding the relevant legal issues in a case has never been thought a necessary

component of equal justice,” because, “[f]or one thing, it is virtually impossible to

find a judge who does not have preconceptions about the law.” Id. For example, it

would be almost impossible to find a judge who does not have preconceived views

about the “‘interpretation of the sweeping clauses of the Constitution and their

interaction with one another.’” Id., quoting Laird v. Tatum, 409 U.S. 824, 835

(1972) (separate memorandum of Rehnquist, J.).

{¶ 31} The Court then acknowledged that another (though also not

common) meaning of impartiality “might be described as open-mindedness.” Id.

at 778. That “sort of impartiality seeks to guarantee each litigant, not an equal

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chance to win the legal points in the case, but at least some chance of doing so.”

(Emphasis in original.) Id. “This quality in a judge demands, not that he have no

preconceptions on legal issues, but that he be willing to consider views that oppose

his preconceptions, and remain open to persuasion.” Id. Although the Court did

not decide whether such impartiality was a compelling state interest, it quickly

dismissed any notion that the announce clause was actually designed to serve such

an interest. Id. at 778-780. It explained that judges take any number of positions

both before and after they are on the bench and that the announce clause covered

such an “infinitesimal portion of the public commitments to legal positions” that it

was implausible that this could be the object of the prohibition. Id. at 779.

{¶ 32} White makes clear that a state has a compelling state interest in

protecting judicial impartiality under the “root meaning” of the term that

encompasses “the lack of bias for or against either party to the proceeding.”

(Emphasis in original.) Id., 536 U.S. at 775. There is no compelling state interest,

however, in guaranteeing parties judges who have a “lack of predisposition

regarding the relevant legal issues in a case.” Id. at 777. And to the extent that the

asserted state interest is one of judicial open-mindedness, we conclude, as the

Supreme Court did in White, that that interest is not relevant here. Just as in White,

the restriction in Jud.Cond.R. 3.2 encompasses only an “infinitesimal portion of the

public commitments to legal positions” that a judge might undertake over the

course of a career, id. at 779.

{¶ 33} In addition to establishing that judicial impartiality is a compelling

state interest, disciplinary counsel also must establish that the restriction is narrowly

tailored to serve that compelling interest. A content-based speech restriction is not

narrowly tailored to achieve a compelling state interest unless it is the least

restrictive means of achieving that interest. O’Toole, 2014-Ohio-4046, at ¶ 30.

Disciplinary counsel must be able to show that Jud.Cond.R. 3.2 “does not

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‘unnecessarily circumscrib[e] protected expression.’ ” (Bracketed text in original.)

White at 775, quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982). He falls short.

{¶ 34} As in White, the restriction on testimony before a public body “is

barely tailored to serve” the interest in preventing party bias “at all,” id. at 776. In

many respects, the restriction at issue here is equivalent to the restriction found

unconstitutional in White: it too prevents a judge from taking a position on

“disputed legal or political issues,” id. at 768. The only difference is that

Jud.Cond.R. 3.2’s restriction applies only to public testimony and communications

with government officials. But this narrowing does nothing to save the provision,

because the narrowing has virtually no connection to the State’s interest in

protecting against party bias.

{¶ 35} The restriction sweeps in almost all public testimony, regardless of

whether that testimony has anything to do with a case that is likely to come before

the judge. This disciplinary proceeding highlights the overbreadth of the provision.

Had H.B. 624 become law, there is virtually no possibility that Judge Grendell

would have had a case involving the law—which concerned the reporting duties of

local health officials and the Ohio Department of Health—come before him in his

capacity as a probate- and juvenile-court judge. There is no reason, then, to think

that Jud.Cond.R. 3.2 would have protected against party bias in Judge Grendell’s

situation or in a host of other applications.

{¶ 36} And Jud.Cond.R. 3.2 not only prohibits judges from voluntarily

testifying before “an executive or a legislative body or official” unless the testimony

relates to a few select topics; it also prohibits judges from “consult[ing] with”

executives and legislators except about those same few topics. Under the provision,

a judge could not share with a legislator his views on school funding, highway

improvements, tax policy, or any number of important civic issues. It’s hard to

imagine that such restrictions do anything to advance the State’s interest in ensuring

against judges who are biased for or against a particular party.

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{¶ 37} By sweeping in a wide variety of protected speech that has no

relation to the State’s compelling interest in protecting judicial impartiality, the

restriction is vastly overinclusive. Disciplinary counsel seeks to partially address

the overinclusivity problem by arguing that judges are free to “speak freely in

support of or [in] opposition to legislative or executive interests in private” and

“may also support or oppose such issues in public” if done in conformance with the

Code, and that Jud.Cond.R. 3.2 will not chill speech because “[a] judge will have

little difficulty determining when the judge speaks at a public hearing or consults

with other government bodies and must paint within the lines drawn by Jud.Cond.R.

3.2.” But none of that is clear from Jud.Cond.R. 3.2 itself. And disciplinary

counsel’s attempt to narrow the restriction highlights a related constitutional

problem with Jud.Cond.R. 3.2—one of vagueness. Judges know and talk to

executives and legislators. Sometimes they talk about current issues. How are

judges supposed to know when their conversations go beyond merely talking about

the issues and cross the line into “consult[ing]” about them? To avoid any

disciplinary actions, many judges would probably choose to avoid these

conversations altogether. The First Amendment disfavors rules that chill speech,

see O’Toole, 2014-Ohio-4046, at ¶ 41-43, and it does not allow the Code of Judicial

Conduct to chill judges into avoiding meaningful conversations about current issues

with their elected representatives—and in Judge Grendell’s case, his wife. See

Winter v. Wolnitzek, 834 F.3d 681, 690 (6th Cir. 2016) (conduct code banning

judicial candidates from making speeches for or against a political candidate or

organization violated First Amendment because it prohibited them from speaking

on “disputed legal and political subjects”).

{¶ 38} Jud.Cond.R. 3.2 is also underinclusive—it makes exceptions for

speech the prohibition of which would also further the interests that disciplinary

counsel contends are compelling. “[U]nderinclusiveness can raise ‘doubts about

whether the government is in fact pursuing the interest it invokes, rather than

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disfavoring a particular speaker or viewpoint.’” Williams-Yulee, 575 U.S. at 448,

quoting Brown v. Entertainment Merchants Assn., 564 U.S. 786, 802 (2011).

Disciplinary counsel argues that a judge who testifies in favor of a bill will not be,

or will appear not to be, impartial when adjudicating “a matter involving that bill.”

Disciplinary counsel does not explain what he means by “a matter involving [a]

bill,” but it seems evident that there are two possibilities. First, a case might come

before the judge that challenges the constitutionality of a bill passed by the General

Assembly. Second, a case could come before the judge when the judge is asked to

apply legislation about which he or she has testified—for example, a judge who

testifies about criminal-sentencing reform might be asked to apply a criminal-

sentencing law.

{¶ 39} Jud.Cond.R. 3.2 is a poor fit for either situation. If the concern is

about a judge having to apply a law about which he testified, why allow judges to

testify in favor of a bill “concerning the law, the legal system, or the administration

of justice”? Cases about laws that concern the law, the legal system, or the

administration of justice are far more likely to arise in a judge’s courtroom than

cases about other types of laws, but the provision allows testimony about the former

and not the latter. Under the provision, a juvenile-court judge could testify about a

bindover law that the judge would be likely to administer every day but not about

a tax law change that could never conceivably come to the judge’s courtroom.

{¶ 40} The provision, in other words, has the effect of allowing judges to

testify about laws that are the most likely to be implicated in a proceeding in a

judge’s courtroom but not about those that are much less likely to be implicated in

a proceeding before the judge. So if the point of the provision is that a judge cannot

be impartial in applying a law that the judge has testified about, the provision is

vastly underinclusive.

{¶ 41} On the other hand, one might conclude that the purpose of the

provision is to prevent a judge from testifying about legislation that the judge may

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later be asked to assess the constitutionality of. The problem here is that the

provision is not narrowly tailored to address such a concern.

{¶ 42} As an initial matter, it seems unlikely that such a problem could arise

very often. The provision sweeps in all Ohio judges, and for most judges it would

seem unlikely that most legislative bills would ever be subject to a challenge in

their courtroom. And for those judges who are likely to hear such a challenge, there

is a much more narrowly tailored means available to protect the State’s interest in

protecting against party bias—one that is already part of the Code of Judicial

Conduct. Jud.Cond.R. 2.10(B) provides that “[a] judge shall not, in connection

with cases, controversies, or issues that are likely to come before the court, make

pledges, promises, or commitments that are inconsistent with the impartial

performance of the adjudicative duties of judicial office.” Thus, to the extent that

a judge’s public testimony involves a matter that is likely to come in front of the

judge, Jud.Cond.R. 2.10(B) prohibits the judge from making any pledge, promise,

or commitment—in a legislative hearing or any other setting—that would be

inconsistent with the impartial performance of the judge’s duties.

{¶ 43} But that’s not all. Jud.Cond.R. 2.11(A) requires a judge to recuse

from a case when his “impartiality might reasonably be questioned.” So if a judge’s

testimony might lead one to reasonably question a judge’s impartiality in a case that

actually comes before the judge, the judge is required to recuse. And if the judge

refuses, a litigant can file an affidavit with the chief justice of this court requesting

the judge’s disqualification. See, e.g., Ohio Const., art IV, § 5(C) (“The chief justice

of the supreme court . . . shall pass upon the disqualification of any judge of the

courts of appeals or courts of common pleas or division thereof.”); R.C. 2701.03

(creating a procedure for a party to ask the chief justice to disqualify a common-

pleas-court judge); R.C. 2101.39 (same, for a probate-court judge). Subsequent

recusal is a far less restrictive means than a broad-reaching, upfront prohibition.

And recusal in such cases will not create the problem that the Court foresaw in

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Williams-Yulee, where a “rule requiring recusal in every case in which a lawyer or

litigant made a campaign contribution would disable many jurisdictions.”

Williams-Yulee, 575 U.S. at 435-436. To the contrary, it will be the rare case in

which legislation (not “concerning the law, the legal system, or the administration

of justice,” Jud.Cond.R 3.2) about which a judge has testified ends up the subject

of a challenge in the judge’s courtroom. Put simply, Jud.Cond.R 3.2 is not the least

restrictive means of achieving the State’s interest in judicial impartiality.

{¶ 44} Because Jud.Cond.R. 3.2 is vague, overinclusive, underinclusive,

and not narrowly tailored to serve the State’s compelling interest in judicial

impartiality, it cannot be justified on the basis of protecting the State’s interest in

an impartial judiciary.

{¶ 45} Public Confidence. Disciplinary counsel’s second asserted

compelling state interest is “public confidence in the independence, impartiality,

integrity, and competence of judges.”

{¶ 46} In Williams-Yulee, the United States Supreme Court found that

Florida had a compelling state interest in protecting public confidence in the

integrity and impartiality of the judiciary that could be protected by prohibiting

judges and candidates from personally soliciting campaign funds. Williams-Yulee,

575 U.S. at 445-448. The Court noted that “‘the spectacle of lawyers or potential

litigants directly handing over money to judicial candidates’ ” could diminish public

confidence in the impartiality of the judiciary. Id. at 447, quoting In re Fadeley,

310 Ore. 548, 565 (1990). Thus, it found a ban on direct judicial solicitations of

campaign contributions to be “one of the rare cases in which a speech restriction

withstands strict scrutiny.” Id. at 444.

{¶ 47} Because “most donors are lawyers and litigants who may appear

before the judge they are supporting,” the Williams-Yulee Court explained, “it is the

regrettable but unavoidable appearance that judges who personally ask for money

may diminish their integrity.” Id. at 434. This is because “a judge in deciding cases

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may not follow the preferences of his supporters or provide any special

consideration to his campaign donors.” Id.

{¶ 48} The compelling state interest that the Supreme Court identified in

Williams-Yulee is closely related to the one that the Court identified in White. In

White, the Court identified a compelling state interest in protecting against judges

who were actually biased for or against a party. In Williams-Yulee, the Court found

a compelling state interest in protecting against the appearance of this same kind

of impropriety—that is, protecting against the appearance of judges who were

actually biased for or against a party.

{¶ 49} Here, disciplinary counsel does not make any argument of the sort

advanced in Williams-Yulee. He simply asserts that “even if the judge could be

impartial, litigants and members of the public could not have confidence in the

impartiality of a judge who publicly supported or opposed legislation that later

comes before that judge.” He also contends that “this concern is by no means

limited to that particular legislation the judge supported or opposed.”

{¶ 50} In making these arguments, disciplinary counsel runs head first into

contrary United States Supreme Court precedent. As the Court held in White in

rejecting a similar argument, “since avoiding judicial preconceptions on legal issues

is neither possible nor desirable, pretending otherwise by attempting to preserve the

‘appearance’ of that type of impartiality can hardly be a compelling state interest

either,” White, 536 U.S. at 778. Just as Jud.Cond.R. 3.2’s restriction is not narrowly

tailored to protect judicial impartiality, it is not narrowly tailored to protect the

appearance of that impartiality. Disciplinary counsel cannot meet “the narrow

tailoring of strict scrutiny . . . by deploying an elusive and overly-broad interest in

avoiding the ‘appearance of impropriety,’” Jenevein, 493 F.3d at 560. Further, all

the over- and underinclusivity and vagueness problems we have already identified

apply equally to the asserted “appearance” state interest. Thus, Jud.Cond.R. 3.2

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cannot be justified on the basis of protecting the State’s interest in maintaining

public confidence in an impartial judiciary.

{¶ 51} Separation of powers. That brings us to the third compelling state

interest asserted by disciplinary counsel: protecting the separation of powers. We

note at the outset that the United States Supreme Court has never recognized

protecting the separation of powers as the type of compelling state interest that

could justify a restriction on speech.

{¶ 52} Indeed, it seems odd to even suggest that such an interest is one that

could justify a speech restriction. The separation of powers is protected by the

structural design of our Constitution, under which Ohioans have delegated the

legislative power to the General Assembly, the executive power to various

executive officers, and the judicial power to the courts. TWISM Ents., L.L.C. v.

State Bd. of Registration for Professional Engineers & Surveyors, 2022-Ohio-4677,

¶ 30. By constitutional design, “[e]ach branch of government ‘can exercise such

power, and such only, as falls within the scope of the express delegation.’” Id. at

¶ 32, quoting Scovill v. Cleveland, 1 Ohio St. 126, 134 (1853). Fundamentally, the

separation of powers is about prohibiting government officials of one branch from

exercising the powers of another branch.

{¶ 53} But by its nature, a speech restriction doesn’t protect against one

branch of government exercising the power of another. Rather, it limits

communications between the branches of government. It is a strange notion that

the State would have a compelling interest that would justify limiting a right

explicitly guaranteed by our Constitution (free speech) in the name of maintaining

the structural guarantees implicit in the same Constitution.

{¶ 54} Indeed, our system of separation of powers depends on

communication between and healthy debate among the branches of government.

Presidents and governors lobby the legislature. Legislatures criticize and

investigate the executive branch. Judges have regular communications with

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prosecutors and other executive-branch attorneys who appear in their courtrooms.

And judicial opinions often serve as a form of communication with the other

branches of government.

{¶ 55} In arguing that the separation of powers presents a compelling state

interest that can justify a speech restriction, disciplinary counsel insists that “[t]he

judiciary . . . cannot assert any control over the ‘“performance of duties that are

purely legislative in character and over which such legislative bodies have

exclusive control.”‘” Disciplinary counsel’s answer brief at 4, quoting Toledo v.

State, 2018-Ohio-2358, ¶ 27, quoting State ex rel. Grendell v. Davidson, 1999-

Ohio-130, ¶ 15. That’s true. But speech by itself is not an exercise of power. A

judge who voluntarily testifies before a legislative committee is asserting no more

control over the General Assembly than the attorney general asserts over this court

when he files an amicus brief. There are simply no separation-of-powers concerns

in this case.

{¶ 56} The only authority disciplinary counsel cites for the proposition that

the separation of powers is a compelling state interest in the context of a speech

restriction is a decision from the Arkansas Supreme Court. See Griffen v. Arkansas

Judicial Discipline & Disability Comm., 355 Ark. 38, 51 (2003). And notably, that

court concluded that the Arkansas rule at issue, which contained a prohibition on

legislative testimony similar to the one in Jud.Cond.R. 3.2,3 failed strict scrutiny.

See id. at 60. We do not find the Arkansas Supreme Court’s decision persuasive on

the question of whether separation of powers is a compelling state interest that can

justify a restriction on speech.

3. The Arkansas provision at issue in Griffen provided: “A judge shall not appear at a public hearing

before, or otherwise consult with, an executive or legislative body or official except on matters

concerning the law, the legal system or the administration of justice or except when acting pro se in

a matter involving the judge or the judge’s interests.” Griffen at 45, citing Arkansas Code of Judicial

Conduct, Canon 4(C)(1).

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{¶ 57} We conclude that Jud.Cond.R. 3.2 is not narrowly tailored to further

the first two compelling state interests advanced by disciplinary counsel. We also

conclude that the third asserted compelling state interest—protecting the separation

of powers—is not the sort of state interest that can be used to justify a restriction

on speech.

{¶ 58} Because Jud.Cond.R. 3.2 cannot survive strict scrutiny, we decline

to enforce it in this case. Our decision today, however, does not mean that we

endorse testimony by judges at public hearings on matters not connected with their

judicial roles. There are good reasons why judges should tread with caution before

embroiling themselves in the day-to-day workings of the state legislature. But

whether we may discipline someone for engaging in constitutionally protected

conduct is a far different question than whether such conduct is a good idea.

II. COUNT 3: THE TEA PARTY EVENT

{¶ 59} The board concluded that Judge Grendell committed multiple

disciplinary violations related to a presentation that he made at a Geauga County

Tea Party meeting and to actions he took leading up to and after the meeting.

A. Facts

{¶ 60} By June of 2019, there was a long-running feud between Judge

Grendell and Geauga County Auditor Charles Walder.

{¶ 61} Walder became the county auditor in April 2018. As auditor, it is his

duty to maintain the county treasury and to disburse funds when a county entity

makes a purchase. R.C. 319.16. So when Judge Grendell’s court buys something,

it submits evidence of that purchase to Walder and Walder pays the bill from the

county treasury. Before Walder became auditor, this process was simple and

uneventful. But Walder determined that the processes in place were inadequate to

protect the county treasury, so he implemented additional procedures shortly after

he took office. Walder began requiring more evidence of the court’s purchases

before he would pay than the court had previously provided. And he demanded

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that all communication between the court and his office go through his chief

compliance officer.

{¶ 62} These new procedures created friction between the court and the

auditor. They created delays in payment that led to several incidents, including

Walder kicking court staff out of the public area of his office, Walder filing

allegations of falsifying documents against court staff, Walder and Judge Grendell

sending strongly worded letters to each other, and Judge Grendell requesting a legal

opinion from the county prosecutor, who in turn requested an opinion from the

attorney general. Things got bad enough that Judge Grendell filed a mandamus

action against the auditor for his refusal to pay the court’s bills. We ultimately

granted him a writ of mandamus and ordered Walder to pay the contested bills.

State ex rel. Grendell v. Walder, 2022-Ohio-204, ¶ 70.

{¶ 63} The delays persisted and the probate court found them

unacceptable—so rather than wait for Walder to mail checks to vendors, Judge

Grendell asked him to give the checks to court staff so that they could send them to

the vendors. That made a new process for the court: it would submit evidence of

purchases to the auditor, the auditor would approve the purchases and write checks

to pay for them, court staff would go to the auditor’s office to review the

documentation related to the checks (purchase orders, invoices, etc.) and sign for

and pick up the checks, and then court staff would send the checks to the vendors.

But the friction continued, and further incidents followed.

{¶ 64} The worst of the incidents occurred on June 27, 2019. That morning,

court staff Kim Laurie and Seth Miller went to the public portion of the auditor’s

office to ask about a vendor who had not yet been paid.4 When they arrived, auditor

staff provided Laurie and Miller with a stack of documents to review so that they

could sign for and take several checks to send to vendors. While they reviewed the

4. The court and the auditor’s office are in the same building. So the June 27 incident took place

both inside of and just outside of that building.

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materials and began signing, Walder’s administrative assistant emerged from the

back of the office and told Laurie and Miller that they needed to leave because they

were causing a disturbance. Confused, Laurie asked if Miller could finish

reviewing the documents and signing for the checks. The administrative assistant

told them no. According to Laurie, she then asked if they could take the documents

back to their office to finish reviewing and signing them and the administrative

assistant said yes. Miller later said that to diffuse the awkward situation, as he and

Laurie left, he joked, “Well, maybe we won’t bring them back.”

{¶ 65} Laurie and Miller returned to their offices. Miller continued to

review the materials from the auditor and sign for the checks. As he reviewed and

signed, Officer Bernakis of the Chardon City Police Department entered Laurie’s

office and asked her if she had stolen documents from the auditor. One of the

auditor’s staff had called the police and reported the documents stolen by Laurie

and Miller. Shocked, Laurie explained what had happened, and she took Officer

Bernakis to Miller’s office. Miller had nearly finished reviewing and signing, and

the three of them then went into the courtroom to explain the situation to Judge

Grendell and to ask him what to do. He told Miller to finish reviewing and signing

the documents and then return them. Miller finished, and Officer Bernakis escorted

him back to the auditor’s office to return the documents. Laurie followed them

shortly after.

{¶ 66} After they returned the documents, Laurie, Miller, and Officer

Bernakis spoke outside on the sidewalk, where they were later joined by Chardon

Police Lieutenant Troy Duncan. Lt. Duncan told Laurie and Miller to go back to

their offices while he went to a meeting in the auditor’s office to figure out what

was going on between the auditor and the court, and that he would come back and

talk to them afterwards. So they did.

{¶ 67} At the meeting were Lt. Duncan, Sheriff Scott Hildenbrand, Walder,

and Walder’s administrative assistant. They discussed the incidents that had

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occurred between the court and the auditor’s office over the prior several months,

as well as the events from that day. Lt. Duncan and Sheriff Hildenbrand expressed

skepticism about criminal charges being warranted, so they suggested inviting

county prosecutor Jim Flaiz to get his opinion on the situation. Flaiz joined the

meeting and advised Walder that any criminal charges would be misdemeanors that

would need to be handled by the police prosecutor, Jim Gillette. Flaiz also opined

that the auditor had the authority to exclude people from his office. They adjourned

the meeting with a plan: Walder would write a letter to Judge Grendell telling him

that his staff were not welcome in the auditor’s office and would be considered

trespassers if they came in, and Lt. Duncan would write a report about that day’s

incidents to give to Gillette for review.

{¶ 68} After leaving the meeting, Lt. Duncan returned to Laurie’s and

Miller’s offices to update them. As he arrived, he received a call over his radio that

Laurie and Miller were in the auditor’s office. They had returned to turn in a few

more signed purchase orders before the close of day. As Laurie and Miller entered

the auditor’s office, the auditor’s staff retreated to the back and ignored them.

Laurie and Miller stayed, perplexed, for a few moments, and just as they decided

to leave, Lt. Duncan walked in. The three of them left the office and returned to

the sidewalk where they had spoken earlier. They calmly discussed the situation

for several minutes until Judge Grendell came outside, still wearing his robe.

According to Lt. Duncan, the discussion with Judge Grendell was pleasant until he

told Judge Grendell that Laurie and Miller would face trespass charges if they

entered the auditor’s office. At that point, Judge Grendell became understandably

upset. According to Lt. Duncan, Judge Grendell said they can’t do that, and yelled

that if he needed to, he would issue a court order that allowed Laurie and Miller to

enter the auditor’s office to conduct court business and anyone who interfered with

that order could be held in contempt—including law-enforcement officers.

According to Laurie and Miller, Judge Grendell did not raise his voice; he was just

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direct. After Judge Grendell made his point, he, Laurie, and Miller went back to

their offices.

{¶ 69} Later that day, Judge Grendell went to the Chardon police station to

talk to Chief of Police William Niehus. They had a direct conversation about what

had happened that day and how things would move forward. Judge Grendell

explained that his staff had a right to be in the public space in the auditor’s office

to conduct court business and that he would be entering an order that says so. And

as he puts it, he expressed concern that if a police officer were to arrest court staff

“for doing public business in a public place,” the department could open itself up

to liability under 42 U.S.C. 1983. After that short conversation, Judge Grendell

left.

{¶ 70} That same day, Judge Grendell called Gillette—the police prosecutor

who would handle any misdemeanor charges against Laurie and Miller. He

explained everything that had happened. He specifically mentioned that he was

going to put on an order making clear that his staff could conduct court business in

the auditor’s public office and that he was concerned that Chardon police officers

would expose themselves to a § 1983 action if they falsely arrested Laurie or Miller.

Gillette was not concerned. The call ended after two or three minutes.

{¶ 71} Several letters followed. To start, Walder sent Judge Grendell the

letter that he had told the sheriff and the county prosecutor he would send. It

informed Judge Grendell that Laurie and Miller were not permitted to enter the

auditor’s office and would face criminal trespassing charges if they did so. Judge

Grendell responded with a letter to Walder that again explained his intended order

and the consequences of violating the order. He also lamented that Walder’s actions

“may result in unnecessary federal litigation at county taxpayers’ expense.” Judge

Grendell also sent a letter to Lt. Duncan. In that letter, Judge Grendell said that he

apologized if Lt. Duncan “mistook [Judge Grendell’s] explanation of the

procedures [he] was going to take to assure that [his] Court personnel could still

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conduct statutorily required official court business in a public area within a public

office as a threat.” He explained that his only intention had been to describe what

processes he would need to take to “assure that the Court [could] provide vital

services.” Regardless, Judge Grendell asked Lt. Duncan to “please accept [his]

apology if [he] offended [him] during [their] conversation.”

{¶ 72} The fallout from the June 27 incident was not over. A local

newspaper—the Geauga County Maple Leaf—picked up the story on July 11. It

described the June 27 incident from multiple perspectives, including an

unattributed account of the incident stating that Judge Grendell “angrily threatened

Chardon Police Lt. Troy Duncan with arrest.” It also obtained a video of the

incident and shared an altered version of it online, splicing together different videos

into one continuous stream and adding captions that were not on the original video.

The Geauga County Tea Party took interest in the incident and invited Judge

Grendell and Walder to a meeting to discuss what had happened that day. Judge

Grendell accepted the invitation, but Walder declined, explaining that he was

unsure about the status of a possible investigation into the incident.

{¶ 73} Judge Grendell opened his remarks at the Tea Party meeting by

expressing regret that Walder had not accepted the invitation to attend. He said that

he found Walder’s explanation for declining questionable considering that Walder

himself was not being investigated, and then he suggested that Walder would not

be investigated “because he’s protected by his buddy the county prosecutor.” He

then provided his perspective on the tension between his court and the auditor’s

office since Walder took office. And he walked through the events of June 27 step

by step. He defended his actions along the way, explaining that his only intent was

to allow his court staff to continue to do the court’s work in public spaces. Toward

the end of his remarks, he took a few questions. Audience members asked Judge

Grendell what could be done about the “misfeasance” by the auditor. Judge

Grendell explained that as the probate-court judge, he could file a mandamus action

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to compel the auditor to perform his legal duty to pay the probate court’s bills, but

that he did not intend to do so, because that would just amplify an already politically

charged fight between county entities. When pressed by the audience about what

they could do, he simply told them that the supporting documentation of the events

he had discussed was available to them and that there are actions that they could

take, but that he was “just [there] just to tell [them] the facts.” Judge Grendell

concluded by presenting the video that the Maple Leaf had shared online. Before

showing it, he described the alterations that had been made to it—that it contained

several extended pauses and captions, neither of which were part of the original.

He attributed these alterations to the auditor’s office, saying that it had “doctored”

the video.

{¶ 74} After the Tea Party meeting, Judge Grendell contacted Gillette and

Chief Niehus once more each. Judge Grendell had heard a rumor that a special

prosecutor had been appointed to investigate the June 27 incident sometime in late

summer. According to Gillette, he had determined that no criminal charges were

appropriate because he considered it an “internal political dispute.” Flaiz, however,

who had a contentious relationship with Judge Grendell, pushed for a special

prosecutor. Gillette ultimately acquiesced, believing that any experienced

prosecutor would conclude that no charges were warranted.

{¶ 75} Judge Grendell asked a friend to reach out to Gillette to see if a

special prosecutor had been appointed. Gillette called Judge Grendell and left him

a voicemail telling him that his office would not be taking any action against any

employees of either the court or the auditor and characterizing the incident as a

“closed investigation” in the police prosecutor’s office. But he mentioned that Flaiz

had requested that a special prosecutor be appointed to investigate the incident.

After receiving this voicemail, Judge Grendell approached Chief Niehus at a

fundraiser for the Chardon Rotary Club. He asked Chief Niehus whether a special

prosecutor had been appointed to investigate the incident. When Chief Niehus told

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him that Flaiz had appointed a special prosecutor, Judge Grendell simply walked

away.

{¶ 76} The board determined that Judge Grendell, through his actions

before and after the Tea Party meeting and by his public comments at the meeting,

committed multiple violations of Jud.Cond.R. 1.2 and 1.3. Jud.Cond.R. 1.2

requires a judge to act “in a manner that promotes public confidence in the

independence, integrity, and impartiality of the judiciary” and to “avoid impropriety

and the appearance of impropriety.” Jud.Cond.R. 1.3 prohibits a judge from

“abus[ing] the prestige of judicial office to advance the personal or economic

interests of [himself] or others.” The board also found that Judge Grendell, through

his remarks at the Tea Party meeting, violated Jud.Cond.R. 2.10(A)’s prohibition

on statements that might interfere with a fair trial or hearing.

B. Objections

{¶ 77} Judge Grendell objects to the board’s findings and recommendations

regarding his remarks at the Geauga County Tea Party meeting and all the incidents

before and after the meeting. With respect to the meeting, Judge Grendell argues

that his remarks did not violate Jud.Cond.R. 1.2, 1.3, or 2.10(A) and that,

regardless, imposing a disciplinary sanction would be unconstitutional as applied

to those remarks.5 And with respect to the other incidents, he argues that he didn’t

violate Jud.Cond.R. 1.2 or 1.3. The Tea Party meeting was the main event, so we

will start our analysis there.

5. The board did not consider any of Judge Grendell’s constitutional arguments, “deeming them to

be within the exclusive purview of the Supreme Court.” Such forbearance was appropriate as to

Judge Grendell’s facial constitutional challenge to Jud.Cond.R. 3.2’s prohibition on public

testimony and consultation with executive- or legislative-branch officials. Because we promulgated

the Code of Judicial Conduct, it is appropriate for us to consider in the first instance a facial

challenge to a rule. But the board should have considered Judge Grendell’s as-applied constitutional

challenge relating to the Tea Party meeting. The Code of Judicial Conduct makes clear that its rules

are “rules of reason that should be applied consistent with constitutional requirements.”

Jud.Cond.R., Scope [5]. And both the board and disciplinary counsel are bound to follow the state

and federal Constitutions.

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1. Imposing a disciplinary sanction on Judge Grendell for his remarks at the

Tea Party meeting would violate his right to free speech

{¶ 78} Judge Grendell brings an as-applied challenge to the board’s

recommended sanctions for his comments at the Tea Party meeting. That means

that he is not arguing that Jud.Cond.R. 1.2, 1.3, and 2.10(A) should be struck down

as unconstitutional. Instead, he is arguing that the board’s recommended sanctions

would be unconstitutional as applied to his particular conduct here. In other words,

he says that it would be unconstitutional to punish him under Jud.Cond.R. 1.2, 1.3,

and 2.10(A) for his remarks at the Tea Party meeting. Relevant here, the Code of

Judicial Conduct itself provides that its rules “are rules of reason that should be

applied consistent with constitutional requirements.” Jud.Cond.R., Scope [5].

{¶ 79} Jud.Cond.R. 1.2, 1.3, and 2.10(A) are very broad. Because our

resolution of Judge Grendell’s as-applied challenge does not affect the general

validity of the rules, we proceed directly to that challenge. And again, because the

briefing in this case focuses on the First Amendment and the First Amendment is

determinative, we begin and end our constitutional analysis with that provision.

{¶ 80} The First Amendment protects the “freedom of speech.” U.S.

Const., amend. I. At the very core of the First Amendment’s protection is political

speech: speech about “‘candidates [for public office], structures and forms of

government, the manner in which government is operated or should be operated,

and all such matters relating to political processes.’” Hartlage, 456 U.S. at 52-53,

quoting Mills v. Alabama, 384 U.S. 214, 218-219 (1966). Because political speech

is core First Amendment speech, restrictions that “burden political speech are

‘subject to strict scrutiny,’ which requires the Government to prove that the

restriction ‘furthers a compelling interest and is narrowly tailored to achieve that

interest.’” Citizens United v. Fed. Election Comm., 558 U.S. 310, 340 (2010),

quoting Fed. Election Comm. v. Wisconsin Right to Life, Inc., 551 U.S. 449, 464

(2007) (Roberts, C.J., separate opinion).

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{¶ 81} There is no question that disciplinary counsel is seeking to punish

Judge Grendell for core political speech: when it comes to the charges related to

the Tea Party meeting, “this case involves punishment of pure speech in the political

forum,” Gentile, 501 U.S. at 1034. The Geauga County Tea Party invited both

Judge Grendell and Walder to discuss the June 27 incident shortly after it was

reported in the Geauga County Maple Leaf. Put simply, a group of civic-minded

voters read in a local newspaper about a public dispute that involved multiple

county elected officials and local law enforcement and invited the two main elected

officials involved in the dispute to come explain themselves before a meeting of

their political party. In a healthy act of democracy, engaged voters of Geauga

County asked Judge Grendell to come speak with them in an inherently political

context.

{¶ 82} Not only was the context of the meeting political. The content of

Judge Grendell’s remarks concerned “‘the manner in which government is operated

or should be operated, and . . . matters relating to political processes,’” Hartlage at

53, quoting Mills at 218-219. He discussed the relationship between his court and

the auditor’s office, their duties, how those duties were being carried out, and the

friction between him and Walder and their respective staffs. He presented his

version of the facts of the June 27 incident and his intentions behind his actions

during and after the incident. And he explained what legal action he could (but

would not) take—file a mandamus action against the auditor—and what actions the

citizens attending the meeting could take. Because Judge Grendell’s remarks at the

Tea Party meeting were about the operations and processes of local government

given in a political context, they are entitled to the strongest First Amendment

protection. To put it simply, disciplinary counsel seeks to regulate speech in “an

area in which the importance of First Amendment protections is ‘at its zenith,’”

Meyer v. Grant, 486 U.S. 414, 425 (1988), quoting Grant v. Meyer, 828 F.2d 1446,

1457 (10th Cir. 1987).

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{¶ 83} Because Judge Grendell’s remarks were core political speech, the

government may only punish him for those remarks if it satisfies strict scrutiny. In

other words, the government must justify its speech restriction with a compelling

state interest and then must show that its application of the restriction in this case

is narrowly tailored to serve that interest. See, e.g., TikTok, Inc. v. Garland, 604

U.S. 56, 67-72 (2025) (holding that, as applied to the challengers, the government

sufficiently justified its speech restriction and showed that the restriction was

sufficiently tailored to the justification); Holder v. Humanitarian Law Project, 561

U.S. 1, 25-40 (2010) (same); Fed. Election Comm. v. Massachusetts Citizens for

Life, Inc., 479 U.S. 238, 256-263 (1986) (holding that the government did not

sufficiently justify its restriction on the challenger’s speech because its interest in

applying the restriction against the challenger was not a compelling interest).

{¶ 84} The board did not explain exactly how Judge Grendell violated

Jud.Cond.R. 1.2, 1.3, and 2.10(A). It just summarily recommended sanctions after

it found Judge Grendell’s remarks at the Tea Party meeting “baseless and

disparaging,” “reckless and untrue,” “biased,” and “filled with inaccuracies and

half-truths.” Essentially, it appears that the board recommended punishing him

because it found his remarks erroneous and misleading. But we cannot punish

Judge Grendell for that reason.

{¶ 85} If a speaker does not knowingly lie or have reckless disregard as to

whether what he is saying is true, his speech is protected by the First Amendment—

even if it is erroneous or misleading. We recognized that in O’Toole when we held

that a rule in the Ohio Code of Judicial Conduct violated the First Amendment by

prohibiting a judicial candidate from saying things that were true but might be

misleading. O’Toole, 2014-Ohio-4046, at ¶ 2, 42. That rule chilled an unjustifiable

amount of protected speech—speech such as “innocent misstatements or . . . honest,

truthful statements made in good faith but that could deceive some listeners.” Id.

at ¶ 42. That sort of speech is protected because “‘erroneous statement[s are]

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inevitable in free debate, and . . . must be protected if the freedoms of expression

are to have the “breathing space” they “need . . . to survive.”‘” (Second ellipsis in

original.) Hartlage, 456 U.S. at 60, quoting New York Times, 376 U.S. at 271-272,

quoting Natl. Assn. for Advancement of Colored People v. Button, 371 U.S. 415,

433 (1963). It is not uncommon for elected officials to mistakenly say something

inaccurate or misleading. When they do, their opponents, journalists, and citizens

are usually quick to point it out. That is the preferred First Amendment remedy:

“more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377

(1927) (Brandeis, J., concurring).

{¶ 86} Other than the board’s conclusory statements in a single paragraph,

neither it nor disciplinary counsel point to any evidence or provide any argument

that Judge Grendell knowingly or recklessly misled the attendees of the Tea Party

meeting. From what we can tell from the record, Judge Grendell simply gave his

side of the story regarding the June 27 incident with the knowledge that was

available to him at the time. Even if what he said was misleading, without more,

he cannot constitutionally be punished for it.

{¶ 87} Perhaps recognizing that Judge Grendell cannot be punished for

misleading political speech, disciplinary counsel takes a different approach. Rather

than justify Jud.Cond.R. 1.2, 1.3, and 2.10(A) with a compelling state interest and

arguing that the recommended sanctions are narrowly tailored to serve that interest,

disciplinary counsel says that Judge Grendell “appears to contend that there must

be an exception to discipline for the statements he made at a Tea Party meeting”

and argues that Judge Grendell “has no categorical First Amendment right to

freedom from discipline for statements if he simply casts them as opinion and

makes them in public.” Whether or not that argument is right, it was disciplinary

counsel’s burden to satisfy strict scrutiny in the face of Judge Grendell’s as-applied

First Amendment challenge.

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{¶ 88} Disciplinary counsel did not meet his burden. He neither sets forth

a compelling state interest to justify the speech restriction nor explains how

restricting Judge Grendell’s speech at the Tea Party meeting is tailored to meet that

interest. Because he has not demonstrated a compelling interest or narrow tailoring

in this case, he did not satisfy strict scrutiny.

{¶ 89} “‘“[T]here is practically universal agreement that a major purpose

of” the First Amendment “was to protect the free discussion of governmental

affairs.”‘” Arizona Free Ent. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721,

755 (2011), quoting Buckley v. Valeo, 424 U.S. 1, 14 (1976), quoting Mills, 384

U.S. at 218. For this reason, restrictions that “inhibit robust and wide-open political

debate without sufficient justification cannot stand.” Id. “[S]peech concerning

public affairs is more than self-expression; it is the essence of self-government.”

Garrison, 379 U.S. at 74-75. Judge Grendell’s as-applied challenge succeeds; we

will not punish him for his remarks at the Tea Party meeting.

2. Disciplinary counsel has not established that a violation of Jud.Cond.R. 1.2

or 1.3 occurred before or after the Tea Party meeting

{¶ 90} The board also found rule violations for Judge Grendell’s conduct

before and after the Tea Party meeting. The board determined that Judge Grendell

violated Jud.Cond.R. 1.2 seven times and Jud.Cond.R. 1.3 five times. Jud.Cond.R.

1.2 says that “[a] judge shall act at all times in a manner that promotes public

confidence in the independence, integrity, and impartiality of the judiciary, and

shall avoid impropriety and the appearance of impropriety.” And Jud.Cond.R. 1.3

prohibits a judge from “abus[ing] the prestige of judicial office to advance the

personal or economic interests of the judge or others, or allow[ing] others to do so.”

{¶ 91} Start with Jud.Cond.R. 1.3. The board found that in the run up to the

Tea Party meeting, Judge Grendell “abuse[d] the prestige of judicial office to

advance the personal or economic interests of” Laurie and Miller in violation of

Jud.Cond.R. 1.3 three times: (1) when he approached Lt. Duncan outside, in his

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robe, and told him that he was going to put on an order saying that Laurie and Miller

could enter the public auditor’s office to do court business and that anyone who

interfered with that order would be held in contempt; (2) when he visited Chief

Niehus to explain his intended order and express concern about possible § 1983

liability if law-enforcement officers interfered with Laurie and Miller carrying out

the court’s business; and (3) when he called Police Prosecutor Gillette to do the

same. The board found that after the Tea Party meeting, Judge Grendell violated

Jud.Cond.R. 1.3 two more times: (4) when he reached out to Gillette to ask whether

a special prosecutor had been appointed to investigate the June 27 incident; and

(5) when he asked Chief Niehus the same at a rotary-club fundraiser. The board

concluded that in each instance, he was throwing the weight of his judicial office

around to influence a possible investigation into his staff. But the record indicates

that he was not acting to advance the personal or economic interests of himself or

others. Rather, he was acting in what he perceived to be the interests of the probate

court.

{¶ 92} Recall what happened. Judge Grendell did not himself get involved

in the June 27 incident until his staff was engaged with Lt. Duncan, who was

explaining to them the possibility of criminal trespass charges against them if they

again entered the auditor’s office. And while the volume of his voice is in dispute,

the content of what he said is not: Judge Grendell suggested that he would have to

enter an administrative order saying that his staff was allowed to enter the public

area of the auditor’s office to do the court’s business if the auditor tried to bar them

from entering, and anyone violating that order would be in contempt of court. He

then explained the intended order to Gillette and Chief Niehus. And he informed

them about the police department’s potential § 1983 liability to his staff if their right

to conduct court business in public was wrongfully interfered with. Much later, he

asked Gillette and Chief Niehus whether a special prosecutor had been appointed

to investigate the June 27 incident, got simple answers from them, and left it at that

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without further conversation. There is no indication that Judge Grendell was

furthering any interest other than the court’s interest in doing court business.

{¶ 93} The board’s contrary conclusions were abrupt and made with little

to no analysis. Again, Jud.Cond.R. 1.3 prohibits a judge from abusing the prestige

of his office “to advance the personal or economic interests of the judge or others.”

(Emphasis added.) In each instance, the board concluded with little more than a

single sentence that Judge Grendell’s actions were driven by a desire to intimidate

various law-enforcement officers and derail a possible investigation into his staff.

See Board Report at ¶ 211 (“[Judge Grendell’s] threats to use his contempt powers

in an effort to intimidate Duncan and the Chardon police department from

investigating potential criminal charges against [his] employees was . . . [a]

violation of Jud.Cond.R. 1.3.”); id. at ¶ 214 (“[Judge Grendell’s] actions were for

the intended purpose of squelching the police department’s investigation of

potential criminal charges against Laurie and Miller”); id. at ¶ 216 (“[Judge

Grendell’s] unprecedented visit to the Chardon police department and his threats to

Chief Niehus regarding contempt charges against anyone who interfered with his

order, and a potential federal lawsuit against the police department, violated . . .

Jud.Cond.R. . . . 1.3”); id. at ¶ 217 (“[Judge Grendell’s] contact with Gillette . . .

violated Jud.Cond.R. . . . 1.3.”); id. at ¶ 240 (“[Judge Grendell’s] inquiries of

Gillette and Niehus violated Jud.Cond.R[.] . . . 1.3”). Other than simply saying so,

neither the board nor disciplinary counsel explain how Judge Grendell’s actions

show that he was using his judicial office to advance the interests of Laurie and

Miller, rather than the interests of the court.

{¶ 94} When Judge Grendell was explaining his intended order and the

potential for a § 1983 action to Chief Niehus, Gillette, and Lt. Duncan, he was doing

so because of the threat of future criminal trespassing charges against his staff if

they entered the auditor’s public office—a threat that would prevent them from

carrying out court business. The record does not indicate that Judge Grendell was

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aware of any pending or impending charges against Laurie and Miller for conduct

stemming directly from the June 27 incident at the time. So he could not have been

acting to derail any such investigation. And there is no indication that Judge

Grendell was furthering any interest at all when he subsequently asked Chief

Niehus and Gillette whether a special prosecutor had been appointed. He merely

asked a question and received an answer. Neither the Board Report nor disciplinary

counsel offer any explanation as to how that violates Jud.Cond.R. 1.3—they just

say that it does. We disagree. Asking a question, receiving an answer, and then

disengaging generally doesn’t further any interest other than simply gaining

information.

{¶ 95} All this to say: disciplinary counsel has not established by clear and

convincing evidence that Judge Grendell violated Jud.Cond.R. 1.3 by “abus[ing]

the prestige of judicial office to advance the personal or economic interests of”

Laurie and Miller before or after the Tea Party meeting.

{¶ 96} The same goes for Jud.Cond.R. 1.2. The board found that in the time

before the Tea Party meeting, Judge Grendell violated Jud.Cond.R. 1.2—which

requires judges to “act at all times in a manner that promotes the public confidence

in the independence, integrity, and impartiality of the judiciary, and . . . avoid

impropriety and the appearance of impropriety”—five times: (1) when he explained

to Lt. Duncan his intended order and the consequences if anyone violated it;

(2) when he explained the order and potential § 1983 liability to Chief Niehus;

(3) when he did the same to Gillette; (4) when he sent his letter to Walder; and (5)

when he sent his apology letter to Lt. Duncan. The board found that after the Tea

Party meeting, Judge Grendell violated Jud.Cond.R. 1.2 twice more: (6) when he

asked Gillette about the special prosecutor and (7) when he asked Chief Niehus

about the special prosecutor. In each instance, the board concluded that Judge

Grendell failed to avoid impropriety or the appearance of impropriety. But the

record does not support those conclusions.

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{¶ 97} The board’s legal findings of rule violations were again conclusory

and made with little analysis. It seems to have focused on Judge Grendell’s

explanations of his intended order and of potential § 1983 liability, repeatedly

characterizing them as “threats” to various law-enforcement officials. To be sure,

Judge Grendell can be faulted for embroiling himself in a messy political dispute

with Walder. But we are hard-pressed to find that his actions constituted violations

of Jud.Cond.R. 1.2. To start, there is nothing in the record that suggests that Judge

Grendell’s intended order would be improper. The court had business to do in the

auditor’s public office, and disciplinary counsel does not argue that it would be

wrong for Judge Grendell to put on an order saying that court staff could conduct

court business in a public place. Further, being held in contempt of court is a well-

known consequence of violating a court order. Judges don’t “threaten” people

when they inform them that violating a court order would constitute contempt of

court.

{¶ 98} With respect to a potential § 1983 action, Judge Grendell had no

threat to make. Any possible § 1983 liability would arise from the violation of

Laurie’s and Miller’s rights, not Judge Grendell’s. If anybody could have made a

threat of a future § 1983 action, it would have been Laurie or Miller. And finally,

neither the Board Report nor disciplinary counsel explain what was improper about

Judge Grendell merely asking Gillette and Chief Niehus whether a special

prosecutor had been appointed. For all these reasons, disciplinary counsel failed to

establish that Judge Grendell’s actions constituted violations of Jud.Cond.R. 1.2.

{¶ 99} These conclusions do not mean that we condone Judge Grendell’s

actions following the June 27 incident. There are many things that he could have

done differently. Even (and perhaps especially) when conducting court business,

judges must be aware of how their actions are perceived publicly and privately. But

we are not deciding whether Judge Grendell acted perfectly here. We are deciding

whether disciplinary counsel has established by clear and convincing evidence that

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Judge Grendell violated the Code of Judicial Conduct. We conclude that he has

not.

III. COUNT 1: THE GLASIER MATTER

{¶ 100} The Glasier matter arose out of a highly contentious child-custody

case that Judge Grendell agreed to accept from the domestic-relations court. The

underlying issue was that three teenage children refused to see their father, despite

an agreed judgment entry that provided for reunification of the children and their

father. After unsuccessfully trying to achieve reunification through therapeutic

counseling, Judge Grendell ordered two of the children to attend visitation with

their father. When they refused to attend, Judge Grendell ordered that they be held

in juvenile detention over a weekend. The board concluded that Judge Grendell

committed a variety of disciplinary violations in his handling of the matter.

{¶ 101} Judge Grendell has raised various objections to the board’s findings

and legal conclusions, and we sustain in part and reject in part his objections. The

board in large part premised its findings on its disagreement with Judge Grendell’s

interpretation and application of the law and with his discretionary decisions. But

as we will explain, the ordinary remedy for a legal error committed by a judge is an

appeal, not discipline. A legal error or an abuse of a judge’s discretion is not by

itself a sufficient basis for discipline; rather, to rise to the level of a disciplinary

violation, there must be a showing that the judge willfully failed to follow the law.

Thus, we sustain several of Judge Grendell’s objections to the board’s findings and

legal conclusions. We conclude, however, that Judge Grendell did violate the Code

of Judicial Conduct and sustain in part the board’s conclusion that Judge Grendell

violated Jud.Cond.R. 1.2, 2.2, and 2.11.

A. Facts

{¶ 102} The facts of the Glasier matter are complicated. They arise out of

Judge Grendell’s decision to accept the transfer of an extremely difficult child-

custody matter from the domestic-relations court. The board’s findings of

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disciplinary violations center on its conclusion that on May 29, 2020, Judge

Grendell improperly ordered two boys held in a juvenile detention center for

refusing to attend visitation with their father. But it also found that he committed

disciplinary violations (1) at a May 27, 2020 hearing in which he ordered the boys

to attend visitation with their father, (2) at a June 1 proceeding that was held after

the boys were released from the detention center, (3) through his handling of

various matters in the case relating to diversion and unruly charges against the boys

between June 1 and June 30, and (4) in connection with a GoFundMe web page that

had been established to assist the boys’ mother.

1. Background: Judge Grendell accepts a difficult case from the domestic-

relations court

{¶ 103} Judge Grendell had never received a case from the domestic-

relations court. One day in 2019, that changed. Domestic-relations-court judge

Carolyn Paschke emailed Judge Grendell to ask if he would consider accepting the

transfer of a “heavily contested” domestic-relations case that had been in the

domestic-relations court since 2015. She explained that a clinical psychologist, Dr.

Farshid Afsarifard, had “conducted a custody evaluation and found parental

alienation.” And while one year earlier the parties had entered into an agreed entry

(the “Agreed Entry”) intended to reunite the children with their father, the court had

been unable to enforce the Agreed Entry because the “3 children [were] refusing to

see their father or Skype with him.” As a result, the father had been denied contact

with his children. She implored Judge Grendell:

We are out of resources and authority on this one. The fact

that Dr. Afsarifard found parental alienation and dad has not been

restored to any type of meaningful contact with the children is both

alarming and disappointing. I was thinking that perhaps in Juvenile

Court you might have the authority to require the children to meet

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with their father in a safe, therapeutic setting and further you might

have the resources in place to reunify the father with the children in

some meaningful way.

Judge Grendell agreed to accept the case. He later described it as one of the most

difficult cases he ever presided over.

{¶ 104} The case that Judge Grendell agreed to accept involved Stacy

Hartman and Grant Glasier, who had divorced in Florida in 2010. They had three

minor children—a daughter born in 2003, a son born in 2004, and a son born in

2006. Under their 2010 judgment of dissolution of their marriage, Hartman was

awarded primary custody of the children and Glasier had visitation rights. Hartman

and the children subsequently moved to Ohio, and later, in an effort to have more

time with his children, Glasier moved to Ohio as well.

{¶ 105} But in February 2017, an incident occurred that led the children to

refuse to see Glasier. The Agreed Entry, which was entered into in August 2018,

was designed to reunify the children with their father. Hartman and Glasier agreed

that the children would begin reunification efforts with their father through a

process that included individual counseling for Glasier and family counseling for

Glasier and the children. The parties further agreed that “the ultimate goal through

counseling is to implement the Court’s standard parenting guidelines, at a

minimum, with more to be allowed with recommendation by family counselor,

parents and children.” The Agreed Entry established “a goal of standard parenting

being implemented within 180 days or as soon as determined by the family

counselor.”

{¶ 106} When Judge Paschke asked for Judge Grendell’s help in 2019, the

boys had not attended visitation with Glasier for a year and a half, despite the

Agreed Entry. After agreeing to accept the case, Judge Grendell reviewed the report

from the clinical psychologist, Dr. Afsarifard, that Judge Paschke had referred to in

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her email. The report served as the premise of the Agreed Entry, with the Agreed

Entry largely adopting Dr. Afsarifard’s recommendations. In his report, Dr.

Afsarifard wrote that “the children ha[d] been through a number of significant

stressors and their interactions with their father had not always been rewarding.”

He explained that even though there was evidence that they had once had a good

relationship with their father, they were unwilling to acknowledge as much, and

“[t]hey were heavily entrenched in their view that their father was an abusive,

alcoholic individual, who should be out of their lives.” Dr. Afsarifard attributed

some of the blame for the situation on the children’s mother. He found it “obvious

that [the children] had been empowered by their mother to ‘make decisions’ as to

whether or not they wanted to have a relationship with their father.” He noted that

when asked directly, neither the mother nor her boyfriend “seemed to be willing to

support an effort to reunify the children with their father.” He also explained, “It is

clear that based on some direct experience of their own with their father, and

negative influence from their mother and [her boyfriend], the children have become

seriously alienated from their father.”

{¶ 107} Dr. Afsarifard recommended that the children remain in the custody

of their mother, that the children participate in therapeutic visitation with their

father, and that within 90 days of the commencement of the therapeutic work that

consideration be given to extending the children’s time with the father with the goal

that within a few months, the children would have standard visitation time with

their father. Dr. Afsarifard emphasized that this “process need[ed] to be supported

by the children’s mother” and that “[c]onsideration should be given to

consequences for [her] if she d[id] not . . . support this plan.” He also suggested

that while “there [were] no clinical indications that [Glasier] had an alcohol abuse

problem, he should abstain from drinking in order to remove any questions

regarding this issue.” He concluded by stating that none of the children’s

experiences with Glasier justified terminating his parental rights and that

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“[a]llowing the children to make decisions that involve eliminating a parent out of

their lives can have serious negative psychological consequences and should not be

a consideration.”

{¶ 108} After accepting the transfer in August 2019, Judge Grendell and his

staff undertook to implement the Agreed Entry. Judge Grendell’s magistrate

arranged for therapeutic visitation to be facilitated by Ohio Guidestone, a service

provider who often worked with the juvenile court. This effort was unsuccessful

because the children refused to see their father and the provider was unwilling to

force them to participate. When that didn’t work, the court tried a different

approach. The court’s case manager met with the children, who expressed their

adamant opposition to seeing their father. The case manager determined that it

might be helpful to take some pressure off the children and work directly with the

parents. At the case manager’s suggestion, in December 2019, the magistrate issued

an order suspending visitation and directing the parents to meet weekly with the

case manager. Unfortunately, this effort proved to be unsuccessful as well.

{¶ 109} Glasier ultimately filed objections to the magistrate’s order

suspending visitation and also filed a motion to modify custody and child support.

In support of his motion, he cited the failure to implement the terms of the Agreed

Entry. He asserted that it was in the best interest of the children that he be named

residential parent and legal custodian and that “if the children remain[ed] with [their

mother], further alienation w[ould] just continue to occur.”

{¶ 110} Judge Grendell held a status hearing on the motion and other related

matters on January 28, 2020. At the hearing, Judge Grendell emphasized that he

viewed the court’s function as “to help facilitate both parents to encourage the

children to have a loving and bonded relationship with both parents.” He noted the

difficulty of the situation and expressed the view that for reunification to be

successful the family needed to work with a “high-priced” and “really skillful”

therapeutic specialist. He opined that he did not think it would be helpful to force

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the children to see their father until such a professional was in place. He also

expressed his determination to achieve reunification, promising that if he needed

to, he would “attend every damn visitation session for the first couple months” and

that he was “not throwing in the towel.”

{¶ 111} Following the January 28 hearing, Judge Grendell asked for

assistance from court staff in identifying potential candidates to facilitate

therapeutic visitation. Ultimately, he selected Dr. Stephen Neuhaus as the

professional who was best suited to work with the family on reunification. Judge

Grendell had prior experience with Dr. Neuhaus and considered him “the nuclear

option for parental alienation matters,” someone who “was able to get past the

obstinance of the alienated juveniles and get the job done.” Judge Grendell ordered

the parents to split the $1,500 initial retainer for Dr. Neuhaus’s services.

Unfortunately, these efforts to restart therapeutic visitation stalled.

{¶ 112} On April 20, Judge Grendell conducted a telephonic hearing with

the parents in which he inquired about the status of the work with Dr. Neuhaus.

The hearing continued the next day with the parties appearing in person. Hartman

represented that she was unable to afford the cost of Dr. Neuhaus’s services,

explaining that she was a stay-at-home mom who had not been employed since

2013 and that Dr. Neuhaus was not covered under her children’s health insurance.

She also told the court that they had tried reunification therapy, and it had not

worked. Judge Grendell explored the idea of Glasier paying the full cost of the

therapy, but Glasier resisted, telling the court that he believed that Hartman could

afford the cost and that unless Hartman had some financial commitment, she would

frustrate efforts to proceed with therapeutic visitation.6

{¶ 113} Judge Grendell also had some tough talk for both parents:

6. According to Judge Grendell, he also considered having the court pay Hartman’s share, but Dr.

Neuhaus told him that that he wouldn’t undertake the work unless both parties had a financial stake

in the outcome.

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So, dad, you’re going to have to cut the crap, the threats, and you’re

going to have to act like a grown-up father. And mom, you’re going

to have to act like a mother who wants the children to have a

relationship with their father.

{¶ 114} Before the second day of the hearing, Judge Grendell conducted in-

camera interviews with the children. Judge Grendell made an effort to connect with

each of the children, asking them about their interests and their studies. All three

children expressed an unwillingness to have a relationship with their father. The

daughter was the most adamant, calling her father “[m]entally abusive, physically

abusive, [and] religiously abusive.” The daughter also expressed a strong resistance

to family counseling, explaining that she had been better off since she had stopped

going to therapy sessions. Judge Grendell explained that his role was “to uphold

the parental rights of the parent and protect the best interests of the child.” He told

the daughter that the law did not allow children to make a unilateral decision not to

see their father. He acknowledged that the situation with the daughter was more

difficult because she would turn 18 in less than a year and be able to make her own

decision about having a relationship with her father, but he told her that she would

need to participate in the counseling process until then. After meeting with the

children, Judge Grendell told the guardian ad litem, who had been present for the

interviews, that he needed a few minutes to think about how to best proceed.

{¶ 115} Judge Grendell returned to the bench and heard from both parents.

He then announced that he would adjust his order about Dr. Neuhaus because of

Hartman’s financial concerns. He ordered that Hartman pay $500 of the initial

retainer and Glasier $1,000. He directed that the money be paid within 15 days and

the therapy sessions be started as “immediately as possible thereafter.”

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2. The May 27 hearing

{¶ 116} Despite Judge Grendell’s order, therapeutic visitation had not

begun by the time the parties next appeared in front of him on May 27. The hearing

date had initially been set on Glasier’s motion to modify custody and child support,

but the day before the hearing, Glasier contacted Hartman to say that he would not

be going forward with the motion.

{¶ 117} Judge Grendell began the hearing by asking Glasier whether there

had been progress with Dr. Neuhaus. Glasier told Judge Grendell that he had

spoken to Dr. Neuhaus the day before and that Dr. Neuhaus had said that he did not

think the treatment would be able to go forward because Hartman was unable to

afford the cost. Judge Grendell asked Hartman if she had paid the $500 as he had

ordered. Hartman replied that Dr. Neuhaus had agreed to let her pay $100 per

month and that she had paid an initial $100 and would pay him that amount

monthly.

{¶ 118} Glasier then explained that he planned to follow Dr. Neuhaus’s

recommendation and that he wanted to withdraw his motion for change of custody

and support. Judge Grendell asked Glasier about his current visitation status, and

Glasier responded that he had not seen his children in over three and a half years.

{¶ 119} At this point, Judge Grendell told Glasier he would convert his

motion to modify custody into “an order seeking to enforce [his] right to parenting

time with the children.” Hartman tried to explain why she believed it would be

inappropriate to allow Glasier to resume his parenting time with the children,

reading a letter to the court in which she argued that the case was “not about the

three children, parental alienation or visitation” but “about a man that needs to be

in control.” She also pointed to a recent guardian ad litem report, which she said

recommended that everything should remain the same.

{¶ 120} Judge Grendell told Hartman that he was not going to relitigate the

past. “We’re not going backwards,” he said. “[W]hat I care about under Ohio law

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is that the children are best situated when they have a loving and bonded

relationship with both parents, and it requires the opposite parent to encourage the

children to have that loving and bonded relationship,” he continued. He also

intimated that Hartman was the reason why the boys had been refusing visitations

with Glasier. He told Hartman, “The record in front of me does not speak well for

your encouragement, ma’am.”

{¶ 121} Judge Grendell found therapeutic visitations to be a lost cause in

the case, telling Glasier: “That train’s left the station. There ha[ve] been efforts by

me and others to get you reconciliation and counseling. That would have been

better for everybody including your children, but apparently that’s just not going to

happen.”

{¶ 122} Judge Grendell then announced that Glasier would receive

visitation with the two boys on alternating weekends, beginning that weekend. He

directed that visitation transfers occur at the sheriff’s office and that the court’s

constable would be present to ensure that the transfer went smoothly. He also

explained that the constable would remain for the first hour of the visitation and

that the boys would have the constable’s cell-phone number and should call him if

there was any issue during visitation. Judge Grendell told Hartman, “You will do

everything positive to enforce [visitations], you will not fuel the children, you will

not tell the children they should call you.” And he warned her that any

“shenanigans” would lead to “some serious discussion about jeopardizing one’s

custody in this case.”

{¶ 123} Before Judge Grendell announced his visitation order, Hartman had

told the court that in preparation for the hearing on the motion to modify custody

she had prepared binders with evidence showing that she had “cooperated and . . .

encouraged the children [to visit their father].” After announcing his decision,

Judge Grendell told Hartman that she was welcome to give the court the binders

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“as evidence . . . for the record.” He also informed Glasier, “[Y]ou’re welcome to

object or not. There’s probably a lot of hearsay in there.” Glasier objected.

{¶ 124} Judge Grendell asked Hartman about the contents of the binders.

Hartman responded that the binders contained “reports from the family counselor,

the Guardian ad Litem reports,” and “threats that were made during reunification

therapy.” Judge Grendell sustained Glasier’s objection, saying “everything you

have described to me, with rare exception, is hearsay and wouldn’t be admissible

unless there was a live body to testify to it.” Nonetheless, he allowed Hartman to

submit the binders for purposes of the record.

3. Attempted visitation and detention of the two boys

{¶ 125} Two days later—Friday, May 29—Hartman dropped off the boys

with the constable as ordered. When Hartman left, the constable was convinced

that the visitation would be successful because of the calm demeanor of the boys.

But eventually the boys began fidgeting, and their nervousness became apparent.

The older boy began indicating that he and his brother would not go with Glasier

for the weekend.

{¶ 126} Worried that the visitation would fall through, the constable

contacted Judge Grendell by telephone. Before the panel in this case, Judge

Grendell said that he told the constable to call Hartman and tell her to again instruct

the boys to attend the visitation. Judge Grendell testified that it was his recollection

that the possibility of detaining the boys did not come up in this first call. But Judge

Grendell’s actions after the call with the constable suggest otherwise. After the call,

Judge Grendell immediately called the juvenile court’s director of probation to

inform her that two children were being placed in detention for unruliness based on

their refusal to attend visitation. Judge Grendell told the director that the children

were not allowed contact with Hartman during the detention and that the detention

would last from Friday night until noon on the following Monday, when he would

hold a hearing on the matter.

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{¶ 127} The constable’s actions also suggest that Judge Grendell initiated

the decision to detain the children on unruly charges. After the call with Judge

Grendell, the constable called the sheriff’s office. The constable testified that he

could not remember why he called the sheriff’s office but that the only reason he

would call the sheriff’s office at that time would be to take the boys into custody.

A court case manager, who was at the attempted visitation, also testified that the

constable had not mentioned detention before his first call with Judge Grendell.

{¶ 128} The constable entered the sheriff’s office with the two boys, and a

sheriff’s deputy was summoned to assist the constable. The constable informed the

sheriff’s deputy that if the boys refused to attend the scheduled visitation with their

father, they would be detained. The deputy later testified that he had been

uncomfortable with the situation because he did not think that failing to attend

visitation created probable cause to detain the boys.

{¶ 129} The constable then called Hartman on speaker phone from the

sheriff’s office. He informed Hartman that the boys were refusing to go with

Glasier and that Judge Grendell had ordered the boys to be detained if they refused

to go. Hartman tried to convince the boys to go with Glasier. The older boy said

that he would rather be put in detention. The younger boy remained silent. Hearing

the older boy’s response, the constable told Hartman that the boys were going to be

charged as unruly and detained. He then ended the call.

{¶ 130} After finishing the call with Hartman, the constable again called

Judge Grendell, who authorized the detention of the boys. The constable and

deputy filled out juvenile fact sheets for the boys. Under the section titled

“Charge,” the deputy wrote on the older boy’s fact sheet: “Unruly Per Judge.” The

constable identified the younger boy’s charge simply as “Unruly.”

{¶ 131} The deputy transported the boys from the sheriff’s office to a

detention center. After dropping off the boys, the deputy filled out an incident

report. In the report, he wrote that the constable had spoken with Judge Grendell

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at the sheriff’s office and that “[p]er Judge Grendell,” he was to take the boys to the

detention center. Judge Grendell directed that the boys be kept separate from the

general population and separate from each other.

4. The June 1 post-detention proceedings

{¶ 132} The boys spent that weekend in the detention center with no

communication with their parents, although their priest was allowed to visit. The

following Monday, June 1, Judge Grendell ordered that the boys be brought to the

juvenile court for a noon detention hearing. While the boys waited in a separate

room, Judge Grendell and the two attorneys who were representing the boys met in

the courtroom.

{¶ 133} Hartman had retained one of the attorneys to represent the boys, but

Judge Grendell told him that the court would appoint him as counsel for one boy at

the court’s expense and that Hartman could use the money she was going to spend

on him for Dr. Neuhaus’s fees for reunification counseling. He appointed separate

counsel for the other boy. After giving the attorneys some background on the child-

custody case, Judge Grendell announced that he was going to process the case

informally under Juv.R. 9(A), which allows the juvenile court “[i]n all appropriate

cases” to avoid “formal court action” through “other community resources . . . to

ameliorate situations brought to the attention of the court.” He said, “I don’t want

unruly charges on these kids.” Rather, his goal was that the children “have at least

initially therapeutic visitation with their dad and . . . some counseling, [that] they

would go through the Neuhaus process that [he had] tried to get them into.” He

also expressed frustration about what he viewed as Hartman’s refusal to “embrac[e]

the process and encourag[e] the children to have a relationship with [Glasier].” He

stated that he intended to put on another order requiring Hartman to pay the

remainder of her share of Neuhaus’s retainer, explaining that “Neuhaus is

convinced that if [Hartman] doesn’t have some vig in the game, it’s a waste of his

time to try to do anything.” He concluded by telling the attorneys that he had signed

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an order releasing the children and requiring them to follow all parenting time as

ordered. After leaving the courtroom, Judge Grendell told the police sergeant who

had transported the boys from the detention facility to release them to their mother.

5. June 1 to June 30

{¶ 134} After the boys’ release, their counsel filed an emergency motion in

the court of appeals to stay the May 28 judgment entry ordering the boys to attend

visitation with their father. Glasier filed with the juvenile court a motion “to vacate

the order of May 28th, 2020 in favor of an order granting standard parenting time

to begin September 4, 2020.”

{¶ 135} Without Glasier asking, Judge Grendell appointed Glasier an

appellate attorney “for the limited purpose of responding to the motion for stay.”

Judge Grendell signed off on Glasier’s appellate counsel being paid his regular rate

of $225 per hour, rather than the standard court rate of $40 per hour. Conversely,

Judge Grendell denied Hartman’s requests for appointment of counsel twice.

{¶ 136} Meanwhile, Judge Grendell continued his effort to handle the

matter informally through diversion. A diversion contract was prepared under

which the boys and their parents were required to “complete the therapeutic

assessment from Dr. Neuhaus and follow all recommendations.” Successful

completion of the contract would mean that no formal court action would be taken

against the boys and the formal complaint would be immediately sealed and

expunged. The contract required the signatures of both parents. Hartman, however,

refused to sign the contract, explaining later that she “didn’t think [her] boys were

guilty of anything.”

{¶ 137} Following the court’s unsuccessful attempt at diversion, the court’s

constable filed formal unruly charges against the boys on June 11. On June 30,

2020, Grendell dismissed without prejudice the unruly charges against the boys and

referred the matter back to diversion pursuant to Juv.R. 9.

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6. The GoFundMe web page

{¶ 138} On July 8, 2020, the court of appeals granted Hartman’s emergency

motion to stay the May 28 judgment entry ordering visitation with Glasier. The

court of appeals further noted that after Hartman filed her notice of appeal, Glasier

filed a motion in the trial court to vacate the May 28 visitation entry. The appellate

court remanded the case to Judge Grendell to rule on Glasier’s motion.

{¶ 139} The remand hearing occurred on July 23. Before the hearing, a

friend of Hartman had created a GoFundMe web page to raise money for Hartman

to retain counsel. The GoFundMe web page was titled “Honor roll students

incarcerated by Judge Grendell” and displayed a photo of Hartman and the boys at

the top of the page. The web page criticized Judge Grendell’s handling of the case

and the detention of the boys, characterizing his actions as “a complete mockery

and abuse of our judicial system.”

{¶ 140} Hartman appeared with counsel at the July 23 hearing; Glasier

appeared pro se. Glasier explained that he had moved to vacate the May 28 order

because after the boys refused to go with him and were put in detention, he

“realize[d] that they absolutely are not going to go unless they have the therapy that

they need and the counseling in order to reunite and . . . redevelop a relationship

with [him].” Judge Grendell vacated the May 28 order but also noted that Glasier’s

motion sought other relief including eventual standard parenting time with the boys.

Judge Grendell stated that it was going to require a full evidentiary hearing to

decide whether it was in the best interest of the children to have parenting time with

Glasier. After discussing scheduling with counsel, Judge Grendell set an

evidentiary hearing to begin on October 12.

{¶ 141} Before he left the bench, Judge Grendell turned to the GoFundMe

web page. He announced that he was prepared to enjoin Hartman, and anyone

connected to Hartman, from using the names or likenesses of the boys “in anything

with the public in connection with these proceedings.” He said, “[Hartman] can

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say anything she wants about me, but “[s]he cannot use [the boys’] names or

likenesses in the context of these proceeding[s] or the [u]nruly proceedings because

then it’s harmful to the best interests of the children.” Hartman’s counsel told Judge

Grendell that her client would follow the judge’s instructions. Judge Grendell also

said he was going to ask Hartman at the October 12 hearing to address why the

clerk shouldn’t “claw back” the funds raised through the GoFundMe web page and

use that money to reimburse the county for her and her sons’ court-appointed

attorneys. Judge Grendell spent the last few minutes of the hearing addressing what

he considered the “many false statements” in the GoFundMe web page.

{¶ 142} Five days after the hearing, Judge Grendell called Hartman’s

attorney and told her that the picture of the children was still on the GoFundMe

web page and asked for an explanation. (Hartman’s attorney later testified that the

reason the image had not been immediately removed was because Judge Grendell

had not yet issued an order memorializing what he had said at the July 23 hearing

and she was waiting “to see exactly what it said.”) After speaking with Judge

Grendell, the attorney called Hartman and told her that the picture needed to be

removed.

{¶ 143} Despite being scheduled at the July 23 hearing, the October 12

evidentiary hearing never occurred. Instead, on September 16, 2020, Judge

Grendell transferred the matter back to the domestic-relations court. With that,

Judge Grendell’s involvement in the Glasier matter came to a close.

7. The board’s findings

{¶ 144} In connection with the Glasier matter, disciplinary counsel charged

Judge Grendell with violating Jud.Cond.R. 1.2, 2.2, 2.9(A), 2.11, 2.11(A)(7)(c), and

Prof.Cond.R. 8.4(d). Jud.Cond.R. 1.2 requires judges to act in “a manner that

promotes public confidence in the independence, integrity, and impartiality of the

judiciary, and [to] avoid impropriety and the appearance of impropriety.”

Jud.Cond.R. 2.2 requires judges to “uphold and apply the law, and [to] perform all

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duties of judicial office fairly and impartially.” Jud.Cond.R. 2.9(A) prohibits

judges from “initiat[ing], receiv[ing], permit[ting], or consider[ing] ex parte

communications,” except in limited circumstances. Jud.Cond.R. 2.11(A) requires

a judge to “disqualify himself or herself in any proceeding in which the judge’s

impartiality might reasonably be questioned.” Division (7)(c) of Jud.Cond.R.

2.11(A) specifically requires the disqualification of a judge who “was a material

witness concerning the matter [in controversy].” And Prof.Cond.R. 8.4(d) prohibits

lawyers from “engag[ing] in conduct that is prejudicial to the administration of

justice.”

{¶ 145} The board found that Judge Grendell committed all the charged

disciplinary violations in the Glasier matter. Specifically, the board found that

Judge Grendell violated some combination of Jud.Cond.R. 1.2, 2.2, 2.9(A), and

2.11 and Prof.Cond.R. 8.4(d) in connection with (1) the May 27, 2020 hearing, (2)

the attempted visitation and the detention of the boys, (3) the June 1 post-detention

proceedings, and (4) his handling of the case from June 1 to June 30.

{¶ 146} The board did not specifically analyze how Judge Grendell’s

conduct violated any of the disciplinary rules charged. Rather, for each of the four

relevant periods noted above, the board summarized Judge Grendell’s conduct and

his purported legal errors. Then, in a concluding, bare-bones summary paragraph,

the board stated that it had concluded that Judge Grendell violated disciplinary

rules. See, e.g., Board Report at ¶ 100 (“The panel finds that [Judge Grendell’s]

actions during the May 27, 2020 hearing violated Jud.Cond.R. 1.2, 2.2, and 2.11,

as well as Prof.Cond.R. 8.4(d).”).

B. Objections

{¶ 147} Judge Grendell raises two objections in relation to the Glasier

matter. First, Judge Grendell objects that the board improperly recommended

sanctions for a violation that was not certified to the board, violating Gov.Bar R.

V(11). Second, Judge Grendell objects that the board erred in finding that he

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committed disciplinary violations in his handling of the Glasier matter. We sustain

Judge Grendell’s objections in part but conclude that Judge Grendell violated

Jud.Cond.R. 1.2, 2.2, and 2.11 in connection with the Glasier matter.

1. Judge Grendell cannot be disciplined for misconduct that was not certified to

the board

{¶ 148} Before a disciplinary matter is certified to the Board of Professional

Conduct for a hearing, the disciplinary complaint is first investigated by a probable-

cause panel. Gov.Bar R. V(11)(A). If the panel determines that there is probable

cause for filing the complaint, it is certified to the board. Id. Any alleged violation

for which probable cause has not been established is dismissed. Id.

{¶ 149} Judge Grendell posits that the board erred by premising its

conclusions in the Glasier matter on findings that he failed to follow applicable law.

He points out that the initial complaint against him alleged that he violated

Jud.Cond.R. 1.1, which states that “[a] judge shall comply with the law.” However,

the probable-cause panel did not find probable cause that he violated Jud.Cond.R.

1.1, so that violation was dismissed and not certified to the board. We agree with

Judge Grendell that it would be improper for the board to premise a disciplinary

violation on a charge that was not certified to the board. Doing so violates basic

due-process principles of fair notice and is inconsistent with the Rules for the

Government of the Bar. See, e.g., Disciplinary Counsel v. Reinheimer, 2020-Ohio-

3941, ¶ 18-19 (rejecting on due-process grounds the board’s findings that

respondent committed rule violations that were not charged in the complaint).

{¶ 150} Judge Grendell points out that most of the board’s findings in the

Glasier matter were premised on its determination that Judge Grendell failed to

follow or misapplied applicable law. Indeed, the section of the Board Report in

which the board concluded that Judge Grendell committed disciplinary violations

in connection with the Glasier matter is titled “Respondent’s Failure to Follow the

Law Applicable to the Case.”

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{¶ 151} Disciplinary counsel contends that the board was not precluded

from disciplining Judge Grendell for his purported legal errors. Disciplinary

counsel argues that even though the probable-cause panel dismissed the

Jud.Cond.R. 1.1 charge (“[a] judge shall comply with the law”), other rules provide

a basis for discipline. Specifically, disciplinary counsel cites Jud.Cond.R. 2.2: “A

judge shall uphold and apply the law, and shall perform all duties of judicial office

fairly and impartially.” Also at issue is Prof.Cond.R. 8.4(d), a broad catchall

provision that makes it misconduct for an attorney to “engage in conduct that is

prejudicial to the administration of justice.”

{¶ 152} We sustain Judge Grendell’s objection in part. As an initial matter,

the board cannot rely on the broad catchall provision in Prof.Cond.R. 8.4(d) to

punish Judge Grendell for conduct that the probable-cause panel chose not to certify

to the board. Any violation of the Code of Judicial Conduct might be considered

to be conduct prejudicial to the administration of justice. But when the probable-

cause panel has refused to certify a violation of a more specific provision, the board

cannot rely on Prof.Cond.R. 8.4(d) to punish the judge for violation of the more

specific provision that was not certified to it.

{¶ 153} As to Jud.Cond.R. 2.2, there is certainly some overlap between that

provision and Jud.Cond.R. 1.1. Jud.Cond.R. 1.1 speaks of “comply[ing] with the

law” and Jud.Cond.R. 2.2 of “uphold[ing] and apply[ing] the law.” But they are

not twins. Nor is one provision redundant of the other. They are separate provisions

of the Code of Judicial Conduct, and they address different misconduct.

Jud.Cond.R. 1.1 is titled “Compliance with the Law.” It provides a general duty of

a judge to comply with applicable laws. Jud.Cond.R. 2.2 is entitled “Impartiality

and Fairness.” It connects the duty of a judge to “uphold and apply the law” with

the requirement that a judge “perform all duties of judicial office fairly and

impartially.”

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{¶ 154} A violation of Jud.Cond.R. 2.2, then, requires more than

noncompliance with the law; rather, to violate its terms, a judge must fail to “uphold

and apply the law” and fail to “perform all duties of judicial office fairly and

impartially.” Thus, we agree with Judge Grendell that because he was not charged

with a violation of Jud.Cond.R. 1.1, a finding that he failed to comply with

Jud.Cond.R. 1.1’s requirement that “[a] judge shall comply with the law” could not

by itself be a basis for discipline.

{¶ 155} Rather, to discipline Judge Grendell for his purported legal errors,

the board was required to find a violation of Jud.Cond.R. 2.2: “A judge shall uphold

and apply the law, and shall perform all duties of judicial office fairly and

impartially.” (Emphasis added.)

2. The ordinary remedy for a legal error is an appeal

{¶ 156} As part of his objections, Judge Grendell contends that the board

erred by finding disciplinary violations in his handling of the Glasier matter.

Noting, once again, that the board’s findings on the Glasier matter were primarily

based on its findings that he failed to follow applicable law, Judge Grendell goes

through each of the purported legal errors identified by the board and argues that

he correctly applied the law. He also argues that even if he committed a legal error,

discipline is not an appropriate remedy for a simple error in law.

{¶ 157} The ordinary remedy for a legal error is an appeal. The law can be

complex, and trial judges must make a vast number of discretionary decisions, often

with only limited time to reflect. We rely on appellate courts, not the disciplinary

system, to correct ordinary legal errors. Thus, we have “long held that ‘a mere

mistake in the exercise of judicial discretion by a judge is not and should never be

the cause or subject of a disciplinary proceeding under’ the judicial-conduct rules.”

Disciplinary Counsel v. Gaul, 2023-Ohio-4751, ¶ 44, quoting Mahoning Cty. Bar

Assn. v. Franko, 168 Ohio St. 17, 30 (1958). Nor are “honest mistakes or

misapprehensions of law” grounds for discipline. Franko at 35. In that vein, “‘[t]he

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remedy for mistakes of law or fact in individual cases is by appeal, or certiorari, or

other proper proceeding. A judge has a right to be wrong so far as any discipline

by [a court is] concerned except as his decisions may be reversed or writs

sustained.’” (Bracketed text in original.) Gaul at ¶ 44, quoting In re Judges of

Cedar Rapids Mun. Court, 256 Iowa 1135, 1136 (1964).

{¶ 158} To discipline a judge for a legal error, more is required than a

conclusion that the judge misinterpreted or misapplied the law. Even egregious

judicial errors, if made in good faith, are not an occasion for discipline. As

Comment [3] to Jud.Cond.R. 2.2 explains, “[w]hen applying and interpreting the

law, a judge sometimes may make good-faith errors of fact or law. Errors of this

kind do not violate this rule.”

{¶ 159} Though a good-faith legal error is not grounds for discipline, we

may appropriately discipline a judge for conduct that “demonstrate[s] a willful

failure to follow the law,” Disciplinary Counsel v. Hoover, 2024-Ohio-4608, ¶ 76.

This standard is reflected in our Rules for the Government of the Judiciary, which

provide that a “willful breach” of the Code of Judicial Conduct may be punished

by judicial discipline. Gov.Jud.R. I(1). As the Michigan Supreme Court recently

explained,

[a] decision to willfully ignore the law is the antithesis of a decision

made in “good faith.” That is, a legal decision that is not made in

“good faith” reasonably implies that a judge has knowledge of the

law but refuses to acknowledge his or her duty or obligation to apply

that law. This refusal cannot be considered faithful to the law.

In re Gorcyca, 500 Mich. 588, 617 (2017).

{¶ 160} Our caselaw is in accord with this general principle that a good-

faith legal error is not a basis for judicial discipline, but a willful failure to follow

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the law may be. In Hoover, we disciplined a judge for violations that involved

judicial bias and a willful failure to follow the law in 16 separate cases in which the

judge improperly threatened defendants with incarceration to collect fines and

costs. Hoover at ¶ 186-187. In doing so, we noted that Hoover “ignored the

applicable law,” id. at ¶ 31, “did not make a good faith-effort to follow the law,” id.

at ¶ 43, 103, admitted that he did not follow an applicable statute because it “d[id]

not work effectively for him,” id. at ¶ 65, and “demonstrate[d] a willful failure to

follow the law,” id. at ¶ 76.

{¶ 161} In Gaul, we disciplined a judge for a variety of misconduct,

including coercing defendants to plead guilty, making demeaning comments to

criminal defendants and others in his courtroom, and improperly using his position

as a judge to help a convicted criminal’s effort to overturn a federal conviction.

Gaul, 2023-Ohio-4751, at ¶ 4, 31-32. At the same time, however, we sustained

Gaul’s objection to a board finding that he had violated the Code of Judicial

Conduct by improperly denying bond to a defendant. Id. at ¶ 42, 50, 97. We noted

that while Gaul conceded to committing legal errors and had been reversed by the

court of appeals, “[t]hese legal mistakes, despite their needing to be corrected on

appeal, [did] not warrant disciplinary action.” Id. at ¶ 47.

{¶ 162} Thus, our precedent establishes that while a good-faith legal error

is not a basis for judicial discipline, a willful failure to follow the law may give rise

to a disciplinary violation.

{¶ 163} The board found that Judge Grendell committed multiple legal

errors in his handling of the Glasier matter. But as we explained in Gaul, “we

cannot let the mound of [alleged] violations obscure our vision.” Id. at ¶ 45. Rather,

“[w]e must carefully comb through [the judge’s] conduct and identify his exercises

of judicial discretion that would be or were better dealt with through the appellate

process and that do not amount to violations of the Code of Judicial Conduct or

Rules of Professional Conduct.” Id. Thus, we cannot follow the board’s lead by

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lumping together Judge Grendell’s discretionary decisions and interpretations of

law in various phases of the case and then simply announcing without analysis that

there has been a violation of multiple disciplinary rules. In order to find a

disciplinary violation, we must examine specific conduct and determine whether

that conduct violates the terms of a specific disciplinary rule. In doing so, we are

mindful that the rules in the Code of Judicial Conduct “should not be interpreted to

impinge upon the essential independence of judges in making judicial decisions.”

Jud.Cond.R., Scope [5]. We are also cognizant that while “the rules [are] binding

and enforceable, it is not contemplated that every transgression will result in the

imposition of discipline.” Id., Scope [6].

3. We conclude that Judge Grendell violated Jud.Cond.R. 1.2, 2.2, and 2.11 in

connection with the Glasier matter

{¶ 164} We turn now to Judge Grendell’s objection that the board erred in

finding that he committed disciplinary violations in connection with the Glasier

matter. As we have previously noted, the board, for the most part, did not tie each

of its findings of rule violations to specific conduct by Judge Grendell that

constituted a violation of the applicable rule. Rather, its report sets forth Judge

Grendell’s conduct in various aspects of the case and then announces in a

conclusory fashion that Judge Grendell’s conduct constituted a violation of multiple

rules. We have independently reviewed the record to determine if each charged

violation is supported by Judge Grendell’s conduct in the Glasier matter. Upon

independent review, we conclude that Judge Grendell violated Jud.Cond.R. 1.2, 2.2,

and 2.11.

i. Jud.Cond.R. 2.2

{¶ 165} Jud.Cond.R. 2.2 requires a judge to “uphold and apply the law, and

. . . perform all duties of judicial office fairly and impartially.” We conclude that

Judge Grendell violated this rule based on his conduct surrounding his order that

the boys be held in detention for their failure to attend visitation with their father.

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{¶ 166} Throughout the disciplinary proceeding, Judge Grendell

maintained that the unruly charges had been prepared by the constable on the

constable’s own initiative and that he had simply approved the boys’ subsequent

detention. The board concluded that Judge Grendell directed that the constable

draft the charges. Judge Grendell has not made a separate objection to this finding,

and we conclude that the board’s finding is supported by the record.

{¶ 167} In Judge Grendell’s view, there was a proper basis to detain the

boys because they disobeyed their mother’s order to attend visitation. He contends

that by so doing, they fell within the statutory definition of an “unruly child.” See

R.C. 2151.022(A). That provision defines “unruly child” to “include[] . . . [a]ny

child who does not submit to the reasonable control of the child’s parents, teachers,

guardian, or custodian, by reason of being wayward or habitually disobedient.”

Neither “wayward” nor “habitually disobedient” is defined by statute.

{¶ 168} Judge Grendell cites cases from the courts of appeals that

demonstrate that children have been charged and adjudicated unruly for not

complying with parental visitations. The caselaw bears out a pattern. In cases in

which children have refused to attend court-mandated visitations with parents,

unruly charges have been brought when the child (1) physically prevented the

parent from exerting control, for example, by running away; (2) refused to attend

visitation multiple times; or (3) both. See Jones v. Jones, 2021-Ohio-1498, ¶ 29

(4th Dist.) (refusing visitations multiple times); Bohannon v. Bohannon, 2020-

Ohio-1255, ¶ 22 (9th Dist.) (taking the bus without permission to avoid parent and

refusing visitations multiple times); Doerman v. Doerman, 2002-Ohio-3165, ¶ 9

(12th Dist.) (running away from home, being charged unruly, then continuing to

refuse visitations); In re Jennings, 1997 WL 34967, *2, 5 (2d Dist. Jan. 31, 1997)

(running away and leaving court-ordered visitation with parent without

permission); In re Puleo, 1979 WL 208197, *1 (11th Dist. Oct. 9, 1979) (“habitually

refusing to cooperate with visitation guidelines set down by the Court”).

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{¶ 169} We find nothing in the record that would support the filing of unruly

charges against the boys. First, it is not clear from the record that the boys

disobeyed an order from their mother to attend visitation. Hartman testified that

before arriving at the sheriff’s office, she had no need to order the boys to attend

visitation because she did not believe they would refuse. Later, at Judge Grendell’s

direction, his constable called Hartman and asked her to tell the boys to attend

visitation. But the record makes clear that this occurred after Judge Grendell had

already told authorities at the juvenile facility that the boys were being detained.

Further, even if we assume that Hartman did order the boys to attend visitation with

their father, the record does not support a finding that they were “habitually

disobedient.”

{¶ 170} More significantly, though, even if we were to assume that unruly

charges were warranted, there was no basis to take the boys into custody and detain

them in the juvenile detention center. Judge Grendell stated that he made the

decision to detain the boys based on Dr. Afsarifard’s opinion that “the continuation

of the termination of the relationship with the father . . . would cause . . . serious

psychological harm.” Juv.R. 6 limits the circumstances under which a child may

be taken into custody. See also R.C. 2151.31(A)(3). And Juv.R. 7(A) states that a

child who is taken into custody “shall not be placed in detention . . . prior to final

disposition” except in limited circumstances. Relevant here, a court officer may

take a child into custody when “[t]here are reasonable grounds to believe that the

child is in immediate danger from the child’s surroundings and that the child’s

removal is necessary to prevent immediate or threatened physical or emotional

harm.” Juv.R. 6(A)(3)(b); R.C. 2151.31(A)(3)(b). And a child who has been taken

into custody may be placed in detention when necessary “[t]o protect the child from

immediate or threatened physical or emotional harm.” Juv.R. 7(A)(1)(a). Here,

while Judge Grendell may have believed that the boys would suffer long-term

emotional harm if they did not reconnect with their father, there is nothing to

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suggest that the children were in “immediate danger from [their] surroundings,”

(emphasis added) Juv.R. 6(A)(3)(b). Indeed, Judge Grendell’s constable later

testified that the boys were not in any immediate danger—physical or emotional—

when they were taken into custody at the sheriff’s office.

{¶ 171} We are also troubled by Judge Grendell’s order that the boys have

no contact with their mother while in the juvenile detention center. Juv.R. 7(J)

provides that “[a] child may telephone the child’s parents and attorney immediately

after being admitted to a shelter or detention facility and at reasonable times

thereafter” and that a parent may visit “at reasonable visiting hours.” Judge

Grendell defended his no-contact order by asserting his authority under Juv.R. 13

to make temporary orders pending the hearing on the complaint. See Juv.R. 13(A)

(allowing court to make temporary orders “as the child’s interest and welfare may

require”). But the only basis for the order that we can discern was Judge Grendell’s

belief that preventing the boys from talking to their mother would make it more

likely that they would relent and agree to attend visitation with their father.

{¶ 172} Our disagreement with Judge Grendell’s assessment of whether

unruly charges were warranted, however, is not by itself a basis for discipline. Nor

is our disagreement with his legal conclusion that there was a proper basis to take

the boys into custody and detain them in the juvenile detention center. But here,

the record shows more than good-faith errors of law. Rather, the picture that

emerges is of a judge who had a strong belief that parental visitation was in the best

interests of the children and who was legitimately frustrated by the failure of other

means to achieve reunification between the boys and their father. But that

frustration mounted to the point that Judge Grendell used the threat of detention—

and when that failed, actual detention—in an attempt to coerce the boys to attend

visitation with their father. He used his constable to orchestrate the filing of

trumped-up charges and ordered the boys detained on those charges with little basis.

In doing so, he willfully turned a blind eye to legal safeguards designed to protect

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the best interests of children and avoid unnecessary detentions. We do not question

Judge Grendell’s good faith in believing that visitation with their father was in the

children’s best interests. But the means that he employed to accomplish that end

evince both a conscious disregard for the law and a failure to impartially perform

his duties. We conclude that his conduct constituted a violation of Jud.Cond.R. 2.2.

ii. Jud.Cond.R. 2.11

{¶ 173} Jud.Cond.R. 2.11(A) requires a judge to disqualify himself in any

proceeding in which his impartiality might reasonably be questioned. The record

in this case demonstrates that Judge Grendell may have taken on the Glasier case

with the best of intentions but that over the course of the case, he lost his objectivity

to such an extent that he could no longer be impartial. At the May 27 hearing, for

example, Judge Grendell sua sponte converted Glasier’s motion to modify custody

into a motion to enforce parenting time and then ruled on the motion without

providing Hartman any chance to respond. At the very least, it is clear that after he

improperly ordered the boys held in detention over the May 29 weekend, he could

not continue to impartially adjudicate the custody proceedings involving the boys.

Indeed, Judge Grendell’s subsequent conduct in appointing an attorney for Glasier

to defend his visitation order in the appellate court and ordering that attorney paid

at well above the normal rate—while not appointing counsel for Hartman—further

highlights that by this point, Judge Grendell had lost his ability to be fair and

impartial. Thus, we hold that Judge Grendell violated Jud.Cond.R. 2.11 in

connection with the Glasier matter.7

7. The board purported to find a violation of both Jud.Cond.R. 2.11 and Jud.Cond.R. 2.11(A)(7)(c).

Jud.Cond.R. 2.11(A) imposes a general duty on a judge to disqualify himself when his impartiality

might reasonably be questioned. The board then, through “including but not limited to” language,

detailed specific circumstances in which a judge’s impartiality might reasonably be questioned and

recusal required. One of these circumstances is set forth in Jud.Cond.R. 2.11(A)(7)(c), which states,

“The judge was a material witness concerning the matter.” Thus, properly understood, Judge

Grendell’s failure to recuse constitutes a single violation of Jud.Cond.R. 2.11, rather than a violation

of two different rules.

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iii. Jud.Cond.R. 1.2

{¶ 174} Jud.Cond.R. 1.2 requires judges to act in “a manner that promotes

public confidence in the independence, integrity, and impartiality of the judiciary,

and [to] avoid impropriety and the appearance of impropriety.” We conclude that

the record supports a finding of a violation of Jud.Cond.R. 1.2. As we have

explained, it is clear that as the Glasier matter progressed, Judge Grendell lost his

ability to be fair and impartial. Improperly ordering two teenage boys to spend a

weekend in detention is not an act that instills public confidence in the impartiality

of the judiciary.

{¶ 175} Nor did Judge Grendell promote public confidence in the judiciary

through his conduct in open court in connection with the GoFundMe web page that

community members had set up to help raise money to allow Hartman to retain

counsel after the boys had been held in detention. We are particularly troubled by

his threat to “claw back” money raised through that page and use it to reimburse

the county for the boys’ appointed counsel. We are not aware of any basis for such

a “claw back,” and Judge Grendell’s comments at the hearing appear to have been

motivated more by his own anger at the page’s negative portrayal of him than by a

legitimate concern for the welfare of the children.

{¶ 176} Thus, we conclude that the record supports a finding that Judge

Grendell violated Jud.Cond.R. 1.2 in connection with the Glasier matter.

iv. Jud.Cond.R. 2.9

{¶ 177} Jud.Cond.R. 2.9 generally prohibits a judge from engaging in ex

parte communications except in limited circumstances. Among the exceptions are

that a judge may make “an ex parte communication for scheduling, administrative,

or emergency purposes, that does not address substantive matters or issues on the

merits . . . provided the judge reasonably believes that no party will gain a

procedural, substantive, or tactical advantage as a result of the ex parte

communication.” Jud.Cond.R. 2.9(A)(1).

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{¶ 178} The board made a single finding of a violation of Jud.Cond.R.

2.9(A). It did so in connection with Judge Grendell’s handling of the June 1 post-

detention hearing. Board Report at ¶ 143. The board stated that Judge Grendell

conducted an “ex parte meeting” with the attorneys for the boys. It found that at

the hearing, “[i]n blatant violation of Jud.Cond.R. 2.9(A)[’s prohibition on ex parte

communications, Judge Grendell] presented his biased version of the facts of the

custody case to the two attorneys he had appointed to represent the boys in the

unruly case.” Id. at ¶ 136.

{¶ 179} We do not understand the board’s conclusion that the hearing was

ex parte. Both boys’ attorneys were present, and because no formal charges had

been filed there were no other parties to the case. While the board may believe that

Judge Grendell was incorrect in his perception that Hartman was responsible for

the boys’ refusal to attend visitation with their father, Judge Grendell did not make

an improper ex parte communication in conveying his assessment to the boys’

attorneys.

{¶ 180} The only place in its report where the board made a finding of a

Jud.Cond.R. 2.9 violation is in its conclusory paragraph listing rule violations

arising out of the June 1 hearing. As part of its account of the GoFundMe web

page, however, the board stated that Judge Grendell engaged in “yet another ex

parte communication when he called [Hartman’s attorney after the July 23 hearing]

demanding to know why Hartman had not taken down the GoFundMe page.”

Board Report at ¶ 174. Thus, we also consider whether that communication

constituted a violation of Jud.Cond.R. 2.9(A).

{¶ 181} Judge Grendell argues that the phone call was administrative in

nature and provided neither party a procedural, substantive, or tactical advantage.

He maintains that the purpose of the call was to check on why Hartman had not

removed the boys’ picture from the GoFundMe web page after her counsel had said

at the hearing that Hartman would do so.

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{¶ 182} We agree that the phone call did not provide a procedural,

substantive, or tactical advantage to any party. Glasier was not disadvantaged by

not being privy to the call. Nor is it clear that the communication concerned a

substantive matter in the case. The call did not touch on any of the matters being

litigated. And in making the call, Judge Grendell was ostensibly acting to protect

the privacy of the juveniles. Perhaps Judge Grendell’s call was motivated more by

his dislike of the criticisms directed at him, as the board seemed to believe, than by

his desire to protect the boys. But the focus of the rule is on whether the call

concerned a substantive matter and whether it provided an advantage to either party.

{¶ 183} Based on the record before us, and considering the clear-and-

convincing-evidence standard, we decline to find that the communication

concerned a substantive matter in the case and constituted a willful breach of

Jud.Cond.R. 2.9. See Gov.Jud.R. I(1) (“willful breach” of the Code of Judicial

Conduct may be punished by judicial discipline). We caution, however, that simply

because we do not find that the conduct meets the threshold for a disciplinary

violation, does not mean that we approve of the conduct. By far the most prudent

course would have been for Judge Grendell to avoid any question about the

propriety of his conduct by engaging counsel for both parties in any conversation.

v. Code of Judicial Conduct violations in the Glasier matter

{¶ 184} Based on the foregoing, we conclude that Judge Grendell violated

Jud.Cond.R. 1.2, 2.2, and 2.11 in connection with the Glasier matter.8 We now

8. The board also found a violation of Prof.Cond.R. 8.4(d), which generally prohibits attorneys from

“engag[ing] in conduct that is prejudicial to the administration of justice.” Any violation of the

Code of Judicial Conduct might be considered prejudicial to the administration of justice. The board

did not, however, identify any specific conduct that violated Prof.Cond.R. 8.4(d) that was distinct

from that encompassed by the other violations. Although in the past we have found violations of

multiple rules for the same conduct, the better practice is to separately apply the disciplinary rules

and give them independent force. Conclusory statements that the same conduct violated multiple

rules does not give those rules the separate application they are due. And piling on general rule

violations to expand the number of disciplinary charges for the same violation does not advance the

ends of the disciplinary process. See, e.g., In re Discipline of Brussow, 2012 UT 53, ¶ 1, fn. 1

(concluding that it would be unfair to punish an attorney for Utah’s equivalent to Prof.Cond.R. 8.4

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consider Judge Grendell’s objections to the board’s findings of aggravating and

mitigating factors.

IV. AGGRAVATING AND MITIGATING FACTORS

{¶ 185} When determining the appropriate sanction for a disciplinary

violation, this court considers the ethical duty that was violated, the injury that

resulted, the aggravating and mitigating factors set forth in Gov.Bar R. V(13), and

precedent from similar cases. Disciplinary Counsel v. Oldfield, 2014-Ohio-2963,

¶ 17.

{¶ 186} Gov.Bar R. V(13)(B) sets forth aggravating factors that “may be

considered in favor of recommending a more severe sanction,” and Gov.Bar R.

V(13)(C) sets forth mitigating factors that “may be considered in favor of

recommending a less severe sanction.” The board found six aggravating factors:

(1) a dishonest or selfish motive, (2) multiple offenses, (3) a pattern of misconduct,

(4) the submission of false statements during the disciplinary process, (5) harm to

vulnerable victims, and (6) refusal to acknowledge the wrongful nature of his

conduct. The board found applicable two mitigating factors: (1) no prior

disciplinary record and (2) evidence of good character and reputation. But it

discounted the character and reputation evidence, concluding that the many letters

attesting to Judge Grendell’s good character should be accorded little weight

because few of the character witnesses were familiar with the charges against Judge

Grendell. After weighing the aggravating and mitigating factors, the board

based solely on the violation of another rule); In re Convisser, 2010-NMSC-037, ¶ 32 (“piling on

another rule violation that is only a more general means to condemn misconduct that specifically

violated other rules would add little to the outcome of this proceeding”); Iowa Supreme Court

Attorney Disciplinary Bd. v. Netti, 797 N.W.2d 591, 605 (Iowa 2011) (declining to find a violation

of a more general prohibition after finding that attorney’s conduct violated a specific prohibition in

the rules); In re Carpenter, 2015 ND 111, ¶ 20 (“Unnecessary ‘stacking’ or ‘piling on’ of rule

violations for the same conduct is discouraged.”). Thus, because we believe the conduct

encompassed by the board’s Prof.Cond.R. 8.4(d) finding is encompassed within the violations that

we have found, we find it unnecessary to make an additional finding of a violation of Prof.Cond.R.

8.4(d).

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recommended that Judge Grendell be suspended from the practice of law for 18

months, with six months stayed. It also recommended that he complete eight hours

of judicial-ethics education on the appropriate use of contempt powers.

{¶ 187} Judge Grendell objects that the board’s recommendation is too

harsh because it improperly analyzed the aggravating and mitigating factors. He

asserts that the board made four errors in its identification of aggravating factors.

First, he argues that disciplinary counsel failed to show that he had a dishonest or

selfish motive because there was no evidence that he acted for personal advantage.

Second, he argues that he did not engage in a pattern of misconduct or commit

multiple offenses. Third, he argues that he did not intentionally submit false

statements to disciplinary counsel. And fourth, he argues that he did acknowledge

the wrongful nature of his conduct.

{¶ 188} Judge Grendell asserts that the board made two errors in its

identification of mitigating factors. First, he argues that the board should have

given more weight to his lack of disciplinary record. And second, he argues that

the board should not have disregarded his many character letters.

A. We Sustain Judge Grendell’s Objection as to the Dishonest-or-Selfish-

Motive Aggravating Factor

{¶ 189} Gov.Bar R. V(13)(B)(2) identifies as an aggravating factor “[a]

dishonest or selfish motive.” The board found this aggravating factor present in all

three matters. Because we find no violations as to the Tea Party event and the

legislative testimony, we consider only the Glasier matter.

{¶ 190} The board concluded that Judge Grendell acted with a selfish

motive because his conduct was motivated by a desire to “succeed where other

courts had failed” in reuniting the boys with their father. It found that Judge

Grendell acted “[s]elfishly” in “us[ing] the unruly charges and detention as coercive

tools to achieve his desired outcome.”

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{¶ 191} Words in Ohio’s rules of court, such as the Rules for the

Government of the Bar, are given their plain and ordinary meaning. See In re T.A.,

2022-Ohio-4173, ¶ 16. Selfishness is exemplified by conduct taken for one’s

personal advantage with disregard for the rights of others. See Webster’s Third New

International Dictionary (2002) (defining “selfish” as “seeking or concentrating on

one’s own advantage . . . without regard for others” and “performed to benefit

oneself esp. in disregard of the welfare of others”); see also Gaul, 2023-Ohio-4751,

at ¶ 79 (declining to find selfish motive as an aggravating factor because although

the judge “committed numerous rule violations, there [was] no proof in the record

that he engaged in misconduct for his personal advantage or that he was excessively

or exclusively concerned with himself”).

{¶ 192} In concluding that Judge Grendell acted with a selfish motive

because he sought to succeed where others had failed, the board went well beyond

the ordinary understanding of the term. Tracking the common meaning of the term,

we don’t normally think of someone as acting selfishly unless he m

This text is long and has been trimmed here. Open the source document for the complete record.