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Lutz asks leader of recall effort to pay legal fees

Gwinnett County judge rules in Hall commissioner's favor

POSTED: November 15, 2011 12:18 a.m.
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Craig Lutz

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Hall County Commissioner Craig Lutz, who faced a recall effort earlier this year, is asking the leader of the effort to pay his legal costs.

Lutz's attorney says he has filed a motion asking a judge to force Kevin Kanieski to pay upward of $12,500 to cover the costs Lutz incurred fighting a petition to recall his election. Kanieski could not be reached by The Times Monday.

Kanieski was the official leader of an effort in August that garnered 229 signatures in favor of an election to recall Lutz, who was installed as a commissioner in January.

The group charged that Lutz violated the state's open meetings law in the early days of his term, stating he was part of a coalition to fire Hall County's top administrators without allowing the entire board to vote on the matter.

Lutz asked a judge to review the grounds of the recall petition, a procedure allowed under the state's elections law.

Instead of fighting the petition in court, Kanieski withdrew it within a week after Lutz asked for judicial review.

Reading a written statement, Kanieski said the withdrawal was "to prepare a new and stronger case for the court."

"In recent work with our legal counsel, we are even more convinced our position that (Lutz) violated the Open Meetings Law is correct," Kanieski said after he withdrew the petition in late August.

Despite the withdrawal, a judge from Gwinnett County had already been assigned to the Lutz v. Kanieski case.

In a hearing on Oct. 7, Kanieski — who had the burden of proving cause for the recall effort — presented no evidence, according to an order filed by Gwinnett County Judge Thomas Davis.

With no evidence to show probable cause for the effort, Davis ruled in Lutz's favor.

"Even if (Kanieski's) Application for Recall is evaluated on its face, it fails to identify with reasonable particularity the meeting or meetings which violated the Georgia open meetings laws, or the activities which represent a violation of (Lutz's) oath of office, represent misconduct in office or represent acts of malfeasance while in office," Davis wrote.

The outcome does not come as a surprise, since Kanieski gave up on the initial recall effort back in August.

But Lutz said he was surprised Kanieski did not continue to fight in court "for the reasons that they got the citizenry behind" in the recall petition.

"They just didn't fight. ... They're asking for the trust of the people who sign those petitions that they're going to carry through with it. That's why they're doing it, right?" Lutz said Monday.

"Unfortunately, it doesn't look like they're carrying through with it."

A phone number listed for Kanieski is disconnected.

A profile he has on the social media site Facebook does not allow outsiders to contact him.

Bobby Hulsey, who does not live in Lutz's district but claimed to help facilitate the efforts of the recall petition, said Monday he did not know how to contact Kanieski. He said he first came to know Kanieski through a Facebook group named "Recall Craig Lutz."

"As soon as we were finished, I deleted his number..." Hulsey said. "I don't have any reason to stay in touch with him now that it's over."

Paul Stanley, who represents Lutz, said the fight isn't over, however.

Stanley has asked Kanieski to pay $12,587.96 to cover Lutz's legal fees. The amount includes $487.96 in court fees.

"The leadership of the recall effort knew that the recall effort would fail from the beginning," Stanley wrote in the motion. "They knew or should have known that Lutz would have to hire counsel to defend against the recall."

The request for legal fees charges that the effort was only meant to harass Lutz and cause him fiscal harm. The motion has not yet been made available in the Hall County Clerk of Courts office, but a copy Stanley provided at The Times' request uses as evidence comments made on a Recall Craig Lutz Facebook group page.

Specifically, the motion refers to a conversation on the page in which the group's creator, Cliff McGlamry, comments that, following Lutz's request for judicial review, the group can withdraw its recall petition and file a new one and "make process expensive and painful for them personally."

In the motion, a signed statement from Lutz asserts that Michael Parker, who comments often on the page of the Recall Craig Lutz Facebook group, "admitted to me that the recall effort amounted to nothing more than ‘harassment' and that it would be almost impossible to obtain the necessary signatures."

"Kanieski and the other organizers should not be rewarded for abusing the recall system and wasting scarce private and public resources simply because their favored candidate lost the election ..." Stanley wrote. "A just award of attorneys' fees to Lutz in this case would have no cooling effect on the exercise of citizens acting in good faith to remove a criminally corrupt elected official, but would dissuade political opponents who are acting in bad faith to harass their victorious opponents."

Parker, when reached for comment late Monday, said that wasn't how he remembered the May conversation with Lutz.

Parker said he told Lutz that if the group "didn't go all the way, then what it would be like then would be just harassment." Parker said he also told Lutz that it would be "nearly impossible" to obtain the amount of signatures required to facilitate a recall election.

"I didn't say that it was being done to harass him or that it was impossible to do," Parker said.

Parker said his comments were made in reference to a May meeting of those interested in the recall effort in which Parker said he told attendees that "if they weren't going to go all the way with it then there wasn't going to be any point in starting it."

Parker was also unaware Monday that the recall effort continued to be reviewed in court once the group withdrew its recall petition.

"I thought it was withdrawn," Parker said. "(I was under the impression) that withdrawing the petition would stop the proceeding and we would start again once we found the attorney who could give us advice."

The group backed off its efforts, Parker said, because hiring an attorney to facilitate the recall process was too costly. Parker said he tried to get an attorney to help the group for free, but couldn't.

"I think that is the reason the effort was withdrawn," Parker said. "There was also the fear — the intimidation factor — of being sued, which I thought was completely bogus."

 



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